Thursday, March 19, 2015

Comparative Wrongful Convictions: The Irish Innocence Project Film Festival - June 2015

Conviction of the innocent is an international issue, and there are innocent projects doing important work all over the world.   The Irish Innocence Project, in Dublin,  is hosting its annual conference in June 2015.  Part of the conference is a film festival devoted to the subject - internationally - of wrongful convictions, exonerations, and exonerees.  For a schedule of the conference, please click on the following link.

http://innocenceproject.gcd.ie/Session-Category/conference2015/

 

For a schedule and complete listing of the films to be presented, please click on the following link. 

 

http://innocenceproject.gcd.ie/Session-Category/filmfestival/

 

March 19, 2015 | Permalink | Comments (0)

Friday, March 13, 2015

Looking at Collateral Consequences of Conviction

As we continue to think about the larger social impact of extremely long sentences and supermax detention, we should include consideration of the social impact of collateral consequences of conviction. What are the pros and cons of imposing collateral consequences on those who have been convicted and served their punishments?  As all criminal law professors know and teach our students, one of the purposes of an actual sentence is rehabilitation and certainly one of the purposes is retribution.  The other purposes are isolation and deterrence.  So what are the purposes served by collateral consequences?   Permanently disenfranching post-sentence  - is that part of punishment?  Is depriving someone of housing benefits or requiring perpetual reporting of convictions part of punishment or is some other purpose served?  Given a growing political and social impact, particularly in the United States, we need to think more clearly about this.

A new statute in the United Kingdom seeks to protect those who have served their sentences from having to report past criminal convictions on a job application.  Until recently, those sentenced to four years or less in prison who do not offend again do not have to disclose their criminal records.  There is a schedule about when those prior sentences are deemed too old to require reporting.  Realizing that “finding a job can be a crucial step in the rehabilitation process,” a recent amendment to the Data Protection Act – a new Section 56 -   imposes criminal liability on potential employers who require a job applicant to authorize a data search that would fully reveal past information.   For additional information about this new law click here:

New Law Means Job Applicants Cannot Be Forced to Reveal Spent Convictions.

In the United States, the ABA has created and launched an extremely helpful NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.

To track changes in the United States, and for more information on the debate, please see the readings below.


Related Readings:

News

Articles

Governmental Publication

 

March 13, 2015 | Permalink | Comments (0)

Sunday, March 8, 2015

An Interesting & Thought-Provoking New Article

Ronald Allen, Northwestern University Law School, has recently posted an article entitled "The Perils of Comparative Law Research," on SSRN.

From the abstract:

This article is part of a festschrift in honor of Michele Taruffo’s remarkable career, and the astonishing erudition reflected in his wide ranging and significant corpus. One criticism is advanced, to-wit that he has too readily accepted as true the persistent rhetoric to the effect that the American adversarial system does not pursue accuracy in adjudication and is dominated by a sporting model in which the stronger and smarter wins regardless of truth and that Continental legal systems are much more geared toward truth determination. This rhetoric is examined and found to rest on striking mischaracterizations of both approaches to litigation. A more accurate, although quite general, description of both approaches is provided that suggests the rhetoric has it exactly backwards. Suggestive data concerning American and Continental legal systems are presented that directly conflict with the rhetoric. In addition, the obvious prediction is that accurate and efficient legal systems should lead to economic growth and innovation. Some suggestive data is presented, which shows that since 1980 the United States has dominated France, Germany, Spain, and Italy in both regards, tending to disconfirm the comparative effectiveness of the European legal systems. Compounding variables are mentioned, and hence the title, “The Perils of Comparative Law Research.”

Allen, Ronald J., The Perils of Comparative Law Research (March 3, 2015).
Available at SSRN: http://ssrn.com/abstract=2573296

March 8, 2015 | Permalink | Comments (0)

Announcing International Legal Ethics Conference VII - July 2016

We are pleased to announce the Seventh Bi-Annual International Legal Ethics Conference.  The topic for this conference will be, "The Ethics & Regulation of Lawyers Worldwide: Comparative and Interdisciplinary Perspectives." The conference is being held at Fordham Law School, in New York City, on July 14-16 2015.   If you are interested in legal ethics, or exploring the issues in comparative legal ethics,  we urge you to consider attending.   Presentations at past conferences have consistently been first-rate and have raised provocative, current and challenging issues of professional ethics regulation, education, practical problems, policy and philosophy.  For further information please click on the following link. 

 

http://law.fordham.edu/louis-stein-center-for-law-and-ethics/33330.htm

March 8, 2015 | Permalink | Comments (0)

Monday, March 2, 2015

Updating a Treatise: Is There a National "Style" in Legal Discourse?

Does a legal system have a character or "style" that distinguishes it from other countries, even if the substantive provisions are similar?  A classic statement of the affirmative argument is Cappelletti Merryman and Perillo's treatise on the Italian Legal System (1967).  In particular the latter chapters, originally drafter by Merryman, describe an Italian style in doctrine (Chapter Five), law (Chapter Six), and interpretation (Chapter Seven).    While it's hard to summarize in a blog post, essentially it boils down to a highly logical and insular style with an extreme skepticism about the role of social sciences and other external norms in legal discourse, and (what amounts to about the same thing) an equal skepticism about "lawmaking" by judges or anyone outside the legislature.   At its extreme, it expresses itself in the idea that a legal transaction (negozio giuridico) involves a simple logical formula, in which Act A results in the existence of Obligation B from Party X to Party Y, and that the rest of law is essentially an extension of this basic formula.   It is a style that served to preserve Italian Law through many centuries of political instability and rule, but one that is perhaps less suited to a modern democracy, which Italy was, or was becoming, at the time of the First Edition.

 How does this argument look 50 years later, when Italy is entering its third generation as a more-or-less functioning democracy, and globalization is (at least in theory) reducing or eliminating the differences between national cultures?   That is the question that I and my co-authors (Francesco Parisi and Pier Giuseppe Monateri) attempted to answer in producing a Second Edition to the beloved, but aging, Cappelletti treatise.    We made the task easier--or perhaps harder--on ourselves by agreeing to maintain as much of the original text as possible, correcting only obviously outdated sections and introducing only those developments (the European Union, the constitutional court, the rather extensive changes in Italian criminal procedure) that could not possibly be avoided.   Even so, the project has taken us a few years, with the book scheduled to appear this summer or fall.

Of course the question that we posed--do legal systems have a particular style and (if so) can it survive globalization--does not have a simple answer.  But a short answer to the question would be: more than you think.   For all the talk of Europeanization/globalization, we found that Italy remains distinct from other countries in legal education, the legal profession, and the style of reasoning by both judges and law professors.    If one wants a pithy quotation, it would be that the words of Italian law are increasingly the same as those in other countries, but the music remains frequently, even defiantly, different.   For more detail--not to mention footnotes--you'll have to buy the book.

March 2, 2015 | Permalink | Comments (0)

Sunday, March 1, 2015

Modern Day Branding: The Public Availability of Criminal Records in the U.S. and Spain

    Although crime rates in the U.S. have decreased for over two decades, our prison population remains high. One cause is the high recidivism rates of ex-offenders. Although there are many causes of recidivism, one critical barrier facing ex-offenders is their inability to gain steady employment.  The widespread availability of criminal records in this country, coupled with government policies that enforce significant collateral consequences on offenders, stymie ex-offenders’ ability to get back on their feet.

     Although the American narrative of shaming and punishment (as well as racism) has played a role in driving the “othering” of criminal offenders, one significant difference between the barriers faced by ex-offenders in the U.S. and Europe  can be traced to the more robust policy of free speech in the U.S. coupled with weaker data privacy protections.

       In a 2011 article, Dara Lee compared recidivism rates in various state-level jurisdictions in the U.S. and found that the availability of online records lead to an 11% increase in recidivism among ex-offenders.  

        In contrast, countries like Spain protect an individual’s right not to be subject to publicity about their criminal convictions. Seeking to protect individual privacy, even Spanish newspapers typically only use the accused individual’s initials. The 1995 Penal Code reiterates the country’s long-standing policy that the National Conviction Registry is not accessible to the public. As a general rule, only prosecutors, judges, and judicial police may access the registry. The two exceptions to this rule included the limited access granted to the police responsible for passport control and the Guardia Civil as part of the gun permit process. Court documents related to a conviction are not available to the public. Interestingly, Spanish legal scholars have argued that publicity concerning a punishment itself may constitute an additional punishment and, in some cases, would make a punishment disproportionate to the crime itself. The lack of access to conviction records extends to employers as well. Because conviction records are considered to be private, very few employers are permitted to ask applicants to provide information about those records. The prominent exceptions are applications to work in the law enforcement area or in government administration.

References

Appelbaum, Binyamin. “Out of Trouble But Criminal Records Keep Men Out of Work,” New York Times,  February 28, 2015.

Laurrari, E. (2011). “Conviction Records in Spain: Obstacles to Reintegration of Offenders?” European Journal of Probation 3(1): 50-62

Lee, Dara. (2011).  “The Digital Scarlett Letter: The Effect of Online Criminal Records on Crime.”

March 1, 2015 | Permalink | Comments (0)

Thursday, February 26, 2015

Online Dispute Resolution Worldwide

A recent UK report recommending the adoption of on-line resolution of low-value civil disputes contains a fascinating look at various on0line dispute resolution systems currently operating in various jurisdictions.  These systems are designed to improve access to justice for those who cannot afford the exhorbitant cost of in-court litigation.  Indeed, while several of the existing systems address civil claims of various kinds, one of them permits the resolution of low-level criminal charges, like traffic violations, and permits, among other things, the uploading of evidence.  Food for thought, as the unavailability of affordable legal solutions in the United States now extends beyond the traditionally poor and well into the middle class.

To read the full report, please click on the following link:

http://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf

 

February 26, 2015 | Permalink | Comments (0)

Monday, February 23, 2015

Law, Anthropology, and Comparative Law

Why is one country’s law different from another’s?   In answering this question comparative lawyers—like political scientists, historians, or international chefs--turn inevitably to the concept of culture.   But culture is a notoriously squishy term, and getting a handle on it is an inherently elusive task.

The dictionary defines culture as “the integrated pattern of human knowledge, belief, and behavior that depends upon the capacity for transmitting knowledge to succeeding generations.”  An alternate definition is “the customary beliefs, social forms, and material traits of a racial, religious or social group,” while a third is “the set of shared attitudes, values, goals, and practices that characterizes an institution or organization.”   The first thing that one notices is the tension between attitudes and institutions.   While laymen tend to think in terms of attitudes and behaviors—Germans are efficient, Italians are emotional, the British keep a stiff upper lip—professional anthropologists often emphasize institutions, which are both shaped by attitudes and (in turn) pass them on to future generations.   In my research on comparative taxation, I have found institutions, like the tax legislative process and the role of nonpartisan tax experts, as or more important than popular attitudes in determining tax outcomes.

Law and anthropology is less popular than (say) law and economics, but it may well be more persuasive.   Most frequently, it has been applied to areas of law, like marriage, divorce, property succession, and (perhaps) criminal law, in which the differences between cultures are most obvious.   But there is a large and growing body of “L and A” work in corporate law and other nontraditional areas.    The work of Annelise Riles, whose numerous publications include Documents: Artifacts of Modern Knowledge, and Collateral Knowledge: Legal Reasoning in the Global Financial Markets, is especially influential in this area.   Other important names include Douglas Holmes, who has written on the anthropology of finance, and Hiro Miyazaki, who has done field work on subjects ranging from Fijian land owners to derivative traders at a Japanese securities firm.     That the latter two are anthropology rather than law professors suggests the wide-ranging nature of the subject. 

Like any interdisciplinary subject, law and anthropology is tough sledding, requiring a knowledge of two distinct subjects and (for comparativists) two or more legal systems.   There is an inevitable tension between theory on the one hand and “thick description,” a la Clifford Geertz, on the other.   Like comparative law generally, it may be a better subject to pursue after tenure than before it.  But the rewards are incalculable.

February 23, 2015 | Permalink | Comments (0)

Friday, February 20, 2015

European Law Faculties Association Annual Conference - Istanbul April 2015

We take pleasure in sharing a link to the annual European Law Faculties Association Conference in Istanbul, Turkey, April 16-19, 2015.  For additional information, please click on the link below. 

 

 

http://www.elfa-afde.com/annual-general-meetings/istanbul-2015

February 20, 2015 | Permalink | Comments (0)

Thursday, February 19, 2015

Getting Real in Ukraine: Trolls, Infiltrators, and the Problem of Fakes

American English has an expression, less in vogue now than in the recent past, but still in current use:  "get real."  It's most often used to urge someone to stop fooling themselves about something; also sometimes used to urge someone to stop trying to push the limits of credulity with someone else.  In basic Property I teach a case, Middler v. Ford Motor Company, that is explicitly about fakes getting real.  This case of unauthorized commercial impersonation tests the possibility of a person asserting property rights -- in this case, singer Bette Middler and the timber of her voice -- in her own "realness."  Piracy, a familiar bête noire of intellectual property doctrine and international trade policy, depends on the distinction between real and fake in its attempts to trade in them. 

 

The problem of imposters is interesting on broader grounds.  In the American academy these days, most of us are social constructivists.  That makes fakes, when it comes to people's practices, a puzzle.  If we consider social life and social facts "constructed," or "performed," then there is no such thing as an a priori authentic self; there are merely dramatic realizations of idealized personas, performances that may or may not be accepted by audiences under different conditions.[1]  Ok.  So no a priori real, no a priori fake.  But what about the imposter, the one whose present performance is parasitic on an ideal whose definitional parameters the performer himself does not consider himself to have met?  This is a problem raised by some of the practices Jacqueline Ross studies, those of police informants, that I find just fascinating.[2]  How much crime may (or must) an informant engage in to create trust with criminals before being considered a criminal himself?  How much performance under those circumstances makes the informant herself liable for criminal prosecution?

 

In Ukraine last winter, during a period of street protests on the central square (the Maidan) against an oligarchic president favored by the incumbent Russian government, protesters who felt their story was not being accurately reported (or suppressed altogether) started their own websites and information distribution systems to get the word out.  "Hromadske tv" ["Citizen tv], an internet broadcast channel.  Babylon 13, an indy film crew producing short documentary films on citizen resistance, aired via the internet.  EuroMaidan News, a print reporting service distributed mostly via its facebook page. 

 

In short order, demonstrators and others noticed parallel press reports and then, on occasion, whole organizations presenting obfuscating or just plain wrong versions of "news" events.  On many occasions, reports hostile to the protesters or their cause seemed to repeat similar tropes -- false statements such as the Maidan protesters were all fascists or Nazis.  Some of the false reporting seemed clearly coordinated.  One late midde-aged woman, for example, interviewed in the southern city of Odessa was identified as a native Russian speaker of Odessa scared of Ukrainian fascists. The very same person later showed up in other footage, interviewed as a "local native" hundreds of miles away -- in Kharkiv, then in cities in southeastern Ukraine -- each time identified as a different local resident, each time under a different name, as a different persona, excoriating protests on different grounds:  here a Russian speaker claiming (falsely) protesters were imposing Ukrainian language, there a local pensioner scared by young protester hooligans, elsewhere a nostalgio-loyalist rejoicing in Russian moves on Crimea.  Efforts like this one, conducting interviews in different places and placing them as different stories in media newsfeeds, takes the practice known in the U.S. as "astro-turfing" -- hierarchical national organizations like political parties installing fake local "grassroots" -- to a new level.   The specious reporting assumed giant proportions in the regional mediaspace.  Many associated it with the government of Russia.  Some Maidan activists set up a channel to blow the whistle on fake news reports that they call Stopfake.  (You can see their website here, at www.stopfake.org/en .)  I admire their energy.  For the literal-minded, as many of us in law are, combatting an infinite regress of funhouse mirror reflections seems exhausting.

 

Another channel of fake reporting or intentional shaping of public opinion has come through internet trolls.  The Atlantic and others have reported on an army of trolls on Russian government payroll whose job it is to surf the internet and social media and post comments on threads to cast doubt or sew confusion.[3]  The Russian government is not the only party in the region deploying such tactics.[4]  Stopfake just published in interview with a troll formerly employed by one of the Ukrainian oligarchs to lurk and post.[5]  Again, this goes beyond "spin," ham-handed attempts of professional p.r. representatives, who publicly self-identify as such, to characterize events in a certain way favorable to the goals of one political party or another.  These are people posing as innocent bystanders or disinterested parties whose job it is to, under that guise, shape discourse and worldviews.  They are not spin-doctors.  They are imposters:  they are pretending publicly to be something they are not and their performance is parasitic on the "real."  (It's a fascinating symptom of the infinite regress problem that Stopfake includes an explanatory label on the section of its website that posted the troll interview:  "News in the section 'Context' are not fakes. We publish them in order to keep you informed about events concerning the information war between Ukraine and Russia."[6]  The Munich Security Conference that opened today (February 6) takes as its topic "Hybrid War," including the "information war"[7]  in which authentic and fake play such starring roles.

 

A facebook a page calling itself "Zero Anthropology" shows up in my stream in defiance of most facebook algorithms.  (For example, I have never "liked" a post, nor shared a post, of theirs, yet it bumps family members out of priority in my feed.)  That leads me to believe that Zero Anthropology may be paying facebook for placement in my feed, although it is not labeled a "sponsored post" as other commercial posts typically are.  I am not bothered much about any of this.  It's easy to ignore.  I am awfully curious, though.  Every post by Zero Anthropology that I've seen is an "inside ball" scathing comment on U.S. foreign policy (or, on rare occasion, British and its colonial legacy).  It reads, in short, like a screed composed by writers with an agenda of discrediting the U.S. government and its allies.  One wonders if their on a payroll.  I have yet to see a single note of anthropological analysis in Zero Anthropology.  In fact, the name "Zero Anthropology" may be the most authentic thing about it. 

 

Another problem of "the real" that has recently resurfaced in Ukraine are reports of infiltrators:  that under the former Yanukovych regime, Russian government personnel purposefully infiltrated the ranks of Ukrainian executive- and legislative- branch structures.  These personnel, installed during the presidency of a Russian government ally or client, found themselves well if precariously positioned after the rapid turn events last February when Yanukovych abdicated and the public voted in a new government less amenable to working closely with Russia in the governance of Ukraine.  News from Ukraine today reports the arrest of two military officers on the grounds of their being Russian infiltrators feeding classified military information to opposing combatants whom Ukrainian government troops are fighting in eastern Ukraine.[8]  (Of course, the news organization reporting the arrests is "Ukraine Today," an entity set up by the Ukrainian government to counter the aggressive media efforts of the Russian government through its news organization, Russia Today.)

 

Sometimes the stakes are puzzlingly, or laughably, low:  if Zero Anthropology , for example, indeed proves a fake, I would be curious about (or concerned for) whatever entity is spending money in attempt to influence the facebook community of English-capable anthropologists.  As one, I freely admit such an effort hardly targets the corridors of great political power or wealth.  At other times, for example infiltration of criminal groupings by police informants, the risks and possible rewards are greater.  Infiltrating officer ranks during a war raises the stakes yet higher.



[1] See Erving Goffman, Performances, in The Performance of Self in Everyday Life.

[2] See, e.g., Jacqueline E. Ross, The Elusive Line between Preventive and Repressive Undercover Investigations in Germany: An Empirical Study, in Police and the Liberal State 136-156 (Markus Dubber ed., 2008); Jacqueline E. Ross, The Place of Covert Policing in Democratic Societies: A Comparative Study of the United States and Germany, 55 American Journal of Comparative Law 493  (2007).

[3] Daisy Sindelair, "The Kremlin's Troll Army," The Atlantic (August 12, 2014).

[4] See, e.g., Adam Taylor, "The Troll War for Ukraine:  Tweets and Blogs to Push the Message," The Washington Post (Mar. 6, 2014) (reporting on Russian government trolls and U.S. government use of social media to shape opinions in the region).

[5] "How to Identify and Spot Internet Trolls:  An Interview with a former Akmetov's bot" (January 31, 2015) available at http://www.stopfake.org/en/how-to-identify-and-recognize-internet-trolls-an-interview-with-a-former-akhmetov-s-bot/.

[6] Id.

[7] Judy Dempsey, "Europe's Losing Information War," Judy Dempsey's Strategic Europe (Feb. 6, 2015) available at http://carnegieeurope.eu/strategiceurope/?fa=58998 .

[8] "Ukraine Military Official Arrested:  Chornobai Accused of Giving Information to Milittants," Ukraine Today (Feb. 5, 2015) available at

https://www.youtube.com/watch?v=ujfD_uQ-0kk&feature=youtu.be

February 19, 2015 | Permalink | Comments (0)

Thursday, February 12, 2015

Hearsay: The ECHR, the UK Supreme Court, and the US Supreme Court

A fascinating judicial dialogue recently took place between the European Court of Human Rights (ECHR) and the U K Supreme Court concerning the admissibility of hearsay evidence.  A look at that discussion illuminates how the ECHR handles its role with respect to its constituent countries.   For us in the United States, it also shows how the United States Supreme Court’s approach to hearsay stands uniquely against that of other countries.

The exchange between the ECHR and the U K Supreme Court involves two cases:  Al-Khawaja and Tahery v . United Kingdom1 and R. v. Horcastle & Ors..2  In the first, Al-Khawaja and Tahery v. United Kingdom, the ECHR held there were two requirements before hearsay evidence could be admitted:  (1)  there had to be good reason for non-attendance of the witness (so-called unavailability) and (2) to put it briefly,  there had to be sufficient safeguards against unreliability.  Significantly, however, the Court held that where hearsay evidence is the “sole or decisive” evidence supporting a conviction, its admission constitutes a violation of the right to a fair trial under Article 6 of the European Convention of Human Rights,3 regardless of the presence or efficacy of safeguards. That case was sent back to the United Kingdom’s domestic courts; domestic courts are then required to take ECHR judgments “into account.” 

Meanwhile, the U K Supreme Court decided R. v. Horncastle & Ors..  While the Court noted that the requirement to “take into account” the Strasbourg decisions normally results in domestic courts applying the principles laid out by the ECHR, the Supreme Court nevertheless held that  there were rare occasions where the Supreme Court could refuse  to follow the ECHR and “give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court.”4   It did so in Horncastle,  and concluded that the hearsay was not the sole or decisive evidence in the case.  And even if it had been, the Court held that  “there were sufficient counterbalancing factors to compensate for any difficulties caused to the defense….”  

The ECHR then reached the same decision in Horncastle.  As a result, the ECHR’s original holding, that where hearsay is the sole or decisive evidence supporting a conviction that conviction violates Article 6, was modified so that the “sole or decisive rule” should not be applied inflexibly.

It is so interesting to see how the Strasbourg Court, which reviews cases from different countries and different systems, must and does, in fact,  take many different national interests into account.  This is really a case in which the United Kingdom’s Courts took the opportunity to explain the particular safeguards against hearsay in the UK  system to the Strasbourg Court.

Incidentally, these decisions also show how the United States Supreme Court’s Sixth Amendment approach to the admission of hearsay in Crawford v. Washington5 is so obviously based on our Constitutional text.  Anyone reading Justice Scalia’s decision knows that.   However,  the contrast to the balancing and fairness that is currently the law in Europe – and, incidentally, was the law in the United States before Crawford – is made absolutely crystal clear. 

 

 

References:

  1.  Al-Khawaja and Tahery v. United Kingdom, [2011] ECHR 2127, http://www.bailii.org/eu/cases/ECHR/2011/2127.html.
  2. R. v. Horncastle & Ors., [2009] UKSC 14, http://www.bailii.org/uk/cases/UKSC/2009/14.html.
  3. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art. 6, http://conventions.coe.int/treaty/en/treaties/html/005.htm.
  4. Horncastle, at ¶ 11.
  5. Crawford v. Washington, 541 U.S. 36 (2004), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-9410#opinion1.

 

 

 

 


 

February 12, 2015 | Permalink | Comments (0)

Sunday, February 8, 2015

Designing an Online Comparative Course

For the past several months I have been meeting with consultants from the IUPUI Center for Teaching and Learning and to design an online course in comparative cybercrime. Though I have completed two courses in the Quality Matters training (which sets standards for online courses), I have been amazed at how difficult it is to design a course with specific learning objectives in mind and to develop  regular assessments tied to those objectives.

Though an instructor can couple recorded lectures with assigned reading, it is difficult to know (guess) just how motivated or self-directed I can expect students to be. Is it too much to require them to contrast and compare two pieces of legislation from different countries without a professor leaning over their shoulder demanding that they delve deeper into the comparison?

I would be curious to know if there are other comparativists out there who have experience teaching an online course and what types of assessments and assignments worked particularly well (or not so well).

February 8, 2015 | Permalink | Comments (0)

comparative legal history: the birth of a new field?

One of the frustrations of legal academics is the narrow definition of fields.    Even international and comparative law, which one would think closely related, are sometimes divided and even alienated from one another.   Legal history, which touches closely on both, is entirely separate and further divided between countries and periods.

A rare effort to combat this narrowness is the "comparative legal history" movement.   The most visible example is the European Society for Comparative Legal History (ESCLH), which was founded a couple of years back and has held a series of conferences, usually in attractive European locations.   (The last was in Macerata, Italy, and the next (2016) is in Gdansk.)

As its name suggests, the ESCLH emphasizes interdisciplinary work, although thus far the historical aspect has tended to trump the comparison.   At a recent conference, most of the papers were on national subjects (treatment of women in Lithuania, legal theory in Catalonia) rather than cross-border topics.   One can argue that this in itself is comparative, because the commenters are nearly always from other countries and the discussion inevitably raises comparative issues.   As the saying goes, one learns to crawl before learning to walk: more conferences will probably mean more comparison, and more comparison will mean more and better-attended conferences.

It's interesting to think about a similar movement in the US.  Legal history here tends to mean "American Legal History:" foreign countries are just too far away and their issues aren't always well-known.   But, as in Europe, the comparisons are implicit even if they aren't always named.  The work of Ariela Gross, for example, suggests that American racism has much in common, not all of it pretty, with the foreign variety.   Some have even suggested—heaven forfend-- that our national security state has historical parallels in Central and Eastern Europe.  Perhaps the ESCLH should hold their next meeting in Chicago.  There are certainly enough restaurants.

February 8, 2015 | Permalink | Comments (0)

Monday, February 2, 2015

New and Continuing Developments in Comparative Tax Law

Do tax law and policy differ in different countries, or are they pretty much the same everywhere?   That question is attracting increased attention from tax and comparative law scholars.

Because tax is quantitative in nature, and because it deals with numerous cross-border transactions, it has historically been considered a strong candidate for globalization.   Works on the subject have historically emphasized the common questions faced by national tax systems—the definition of income, the treatment of capital expenditures, the choice between income, expenditure, and VAT taxes—as well as the common policy goals (fairness, efficiency, simplicity) said to underlie these questions.    To put it in comparative law terms, the presumption of similarity has been especially strong in the tax field, together with a strong sense that national tax systems were converging around common themes.

In recent years these assumptions, together with the overall state of comparative tax discourse, have attracted increasing skepticism.   Prof. Omri Marian’s article, “The Discursive Failure in Comparative Tax Law,” argues that comparative tax is largely undeveloped and has “failed to produce even the faintest form of paradigmatic discourse.”   Marian is particularly skeptical about the application of a functionalist approach to comparative tax issues.  

Carlo Garbarino’s piece, “An Evolutionary Approach to Comparative Taxation,” is somewhat less skeptical, recognizing common themes but also significant differences between national tax systems.   Garbarino argues for a “functional evolutionary” approach that emphasizes institutional analysis, tax transplants, and efforts to identify a “common core” of tax principles that is consistent despite national differences.  

My own current project, with the rather immodest title of “Tax and Culture,” attempts to identify underlying differences that might account for the divergence as well as the supposed convergence of tax systems.   These include attitudinal but also institutional differences—what I label “tax anthropology” and “tax sociology”—that are stubbornly resistant to standardization.    I am especially interested in what might be called historical quirks, like American antitax sentiment or the Indian rule against taxation of agricultural income, which appear irrational to outsiders but continue to play an important role in national tax systems.   (I hinted at these issues in a piece a couple of years ago; now I'm trying to expand them into a full-length book.)

I should also mention the work of more comprehensive scholars like Alison Christians, Daniel Shaviro, and Reuven Avi-Yonah who—while writing about a wide variety of issues—inevitably touch on the question of convergence or divergence and the persistence of distinctive tax cultures in the international tax system. 

Like all comparative law problems, it may be that the tax issue is irresoluble: that there will always be some mixed of similarity and difference that no theory can fully explain.   Still, for a field historically at the margins of comparative law discourse—and one whose theoretical side remains notoriously undeveloped—it is a refreshing change.

February 2, 2015 | Permalink | Comments (0)

Sunday, February 1, 2015

The Paris Attacks: Part II

This guest post is written by Mohamed Arafa-an Assistant Professor of Criminal Law and Criminal Justice at Alexandria University Faculty of Law (Egypt) and an Adjunct Professor of Law at Indiana University Robert H. McKinney School of Law at Indianapolis (USA).

On January 7, 2015, Egypt President ‘Abdel-Fattach El-Sisi made a remarkable visit to St Mark’s Orthodox Cathedral to celebrate Christmas Day with  Coptic Christians.  El-Sisi was sending an obvious and robust message to the radical and extreme Islamists, particularly in light of the latest discriminatory acts toward Copts at the hands of radical Muslims.[1] El-Sisi in his recent declaration said: “Islam must reform, its dialogue needs to change, and the Muslim community needs a revolution in understating their Islamic religion and apprehending the accurate and correct interpretations of the Islamic provisions of either the Quranic texts or the Prophet Mohammad’s teachings . . .” via the moderate madaress al-fiqh (schools of jurisprudential thoughts) by adopting the tools of Islamic interpretation of either analogical deduction or ijtihad (individual reasoning) before the devastating attack on Charlie Hebdo.[2]  

On the same day, a crime against humanity was perpetrated under the cover of religion -  jihadist gunmen forced their way into and opened fire in the Paris headquarters of Charlie Hebdo, shooting, killing, and wounding twelve individuals (staff cartoonists, and police officers). During the attack, the radicals shouted Allah Akbar (God is great and the Prophet is avenged).[3] Promptly, French President François Hollande described the inhumane activity as a “terrorist attack of the most extreme barbarity.”[4] Many Muslim leaders throughout the globe condemned the barbaric incident and implored that, although Muslims may be offended by images that ridicule the Prophet Mohammad, both constitutional and international legal principles, as well as Islamic human rights law[5] recognize freedom of speech as an essential human right. Whatever the motivation for the attacks, the gunmen ignored one of the main foundations of Islam. By resorting to violence, these fanatical killers were not revenging the Prophet, but rather demonstrating their own self-righteousness and religious illiteracy.[6]  In contrast, some online extremists praised the attacks.[7]



[1] See Ahmad Al-Ghamrawi, Sisi Makes Historic Christmas Visit to St. Marks Cathedral, Asharq Al-Awast, Jan. 8, 2015, http://www.aawsat.net/2015/01/article55340234 (“Egyptian President ‘Abdel-Fattah El-Sisi visited the country’s main Coptic Cathedral in Cairo . . . to attend its Christmas celebrations, becoming the first Egyptian head of state to visit the cathedral to mark the occasion. Sisi made the surprise 10-minute visit to St. Mark’s Coptic Cathedral—the seat of the Coptic Orthodox Church and its Pope Tawadros II—during Christmas Eve. Mass.”).

[2] Id.

[3]See generally Charlie Hebdo Attack: Three Days of Terror, BBC News, Jan.14, 2015, http://www.bbc.com/news/world-europe-30708237 (last visited Jan. 20, 2015). (“France is emerging from one of its worst security crises in decades after three days of attacks by gunmen brought bloodshed to the capital Paris and its surrounding areas. It began with a massacre at the offices of satirical magazine Charlie Hebdo . . .”).

[4] Id. See also Defiant Charlie Hebdo Depicts Prophet Muhammad on Cover, BBC News, Jan.13, 2015, http://www.bbc.com/news/world-europe-30790409 (last retrieved Jan.20, 2015). (“French satirical magazine Charlie Hebdo show[ed] a cartoon depicting the Prophet Muhammad holding a “Je Suis Charlie” (Im Charlie) sign. Above the cartoon are the words “All Is Forgiven.”).

[5] See Pamela Constable, U.S. Muslim Groups Denounce French Terror, Say Free Speech Must Be Protected, The Washington Post, Jan.14, 2015, http://www.washingtonpost.com/local/us-muslim-groups-denounce-french-terror-say-free-speech-must-be-protected-even-when-it-insults-their-religion/2015/01/14/3867cd80-9c26-11e4-96cc-e858eba91ced_story.html (last visited Jan. 20, 2015). (“The caricatures of the Prophet are offensive, but the violent assault on the satirical magazine Charlie Hebdo was a complete affront to Islamic principles and values . . .”).

[6] Id.

[7] Ian Black, Charlie Hebdo Killings Condemned By Arab States—But Hailed Online By Extremists, The Guardian, Jan.7, 2015, http://www.theguardian.com/world/2015/jan/07/charlie-hebdo-killings-arab-states-jihadi-extremist-sympathisers-isis (“Supporters of ISIS praise attack . . . Arab governments and Muslim leaders and organizations across the world have condemned the deadly attack in Paris, but it was praised by jihadi sympathizers who hailed it as “revenge” against those who had “insulted” the Prophet. Saudi Arabia called it a “cowardly terrorist attack that was rejected by the true Islamic religion.” The Arab League and Egypt’s al-Azhar University–the leading theological institution in the Sunni Muslim world–also convict the incident…Iran, Jordan, Bahrain, Morocco, [and] others issued similar statements.”).

February 1, 2015 | Permalink | Comments (0)

Friday, January 30, 2015

Taking Stock of Taking Stock

             This is a time of year when we've typically taken stock and reflected, in different domains in different ways.  At New Year's, many of us look back on the year that passed.  In case the holidays were too packed or reflection time otherwise denied or derailed, never fear.  Eastern European and a few other traditions offer a second bite at the apple.  Until the Soviet revolution, there was a thirteen-day disjuncture between Julian calendar  and the Gregorian calendar.  Thanks to that lag, still folklorically preserved in the observance of a few prominent holidays,  midwinter yields a second "New Year's Day" thirteen days after ordinary January 1 New Year's Day called Stariy Noviy God, literally "Old New Year's."  [Isn't that a great name for a holiday?  It encapsulates the sense of Janus in one seemingly oxymoronic but actually deeply sensical phrase.]  If you missed Old New Year's, the Lunar New Year similarly offers a "second bite at the apple" of properly reflecting on the year that passed and celebrating the turn of the year to come.  Professional domains offer other means of taking stock at this time of year.  Student evaluations of our first semester courses invite reflection, even when evaluations are glowing.  In the U.S. legal academy, the so-called "submission season" for law reviews opens around February 1 for most journals, meaning around this time many legal scholars are reviewing arguments, polishing prose, and otherwise engaged in practices of scholarly reflection.  And this time in January has become a period of reflection in Ukraine, where I conduct my fieldwork; last year on January 22nd, the first citizen protesters were shot or turned up dead.  In their honor, the past week has been a week of eulogies, commemorations, sober reflection, and fond or heartbroken reminiscing about those first fallen.  (Certainly, not everyone in Ukraine admired their cause, but those sentiments are not aired as prominently during periods of public grief and ritual commemoration.)  It is the one-year anniversary that invites outpourings.

            I'm very interested in time:  how people experience it, phenomenologically; how people conceptualize it; how experience of temporality inflects epistemology, including legal ideas, and practices.  "Looking back on the year that passed," for example, shows how a particular conception of time (as a linear flow that "passes") reinforces how we experience time (for example, as a unit of measure of that linear flow, that there is a "year" that can pass) and has ramifications for practice (i.e., the January practice of reflecting on the year that passed or acting on resolutions for the year to come).  A couple of pieces that I'm thinking through right now, including one in conflicts of laws, consider time and temporality in law.   Temporality can function as a part of cognitive background that prefigures other thinking -- about, say, causality -- of basic importance in legal reasoning and outcomes.

            Looking back on the year that passed in the parts of the world where I research and teach, Ukraine and St. Louis, 2014 was quite a year.  A year ago, even demonstrators remodeling the centers of Kyiv and other cities in Ukraine could hardly have guessed what time would bring:  mass lethal attacks on demonstrators, followed by the president's parliamentary majority crumbling, the government abdicating and the president and some of his circle fleeing the country; plain-clothes invasion in Crimea, destabilization of Southeast Ukraine with the eventual open involvement of Russian troops; an autumn and winter of hardship for refugees, IDPs, and settled populations; hunger (including reported rumors of some deaths by starvation) in the Southeast, the breadbasket of Europe; and new, renewed fighting and bombardments from compatriots or others from across borders.  Viewed from a year ago, the year to come was literally unfathomable.  The sense of rupture has still not been fully internalized and the crisis is still unfolding.  I've given some thought in past writing to a methodology for studying legal and social change, concentrating on how people make sense for themselves, under conditions of rupture.1  Ukraine this year may be providing fresh material for revisiting that theme, as much as I wish it were boringly otherwise.  That experience of rupture calls into question the exercise of taking stock.

            How does experiencing time as a year that passed prefigure our epistemic engagements as comparativists?  In this, I think our sister discipline must be history, whose experts traffic in time and toil in the vineyards of implicit comparison constantly.  Even for those of us whose comparison is typically between geographically rather than temporally disparate settings, the past certainly seems to be much more of an intentional object in our scholarly work than the future.  Perhaps neo-Deleuzian work in event-approach practices,2 uncertainty,3 and anticipation4 will evoke more anticipatory work in legal scholarship.  "Taking stock" might inflect the future as well as reflect upon the past. 

            Certainly in scholarly work, "taking stock" in terms of reflecting and putting together an article on one's research can feel like blessed closure or like an almost- irritating a caesura, the splash of a pebble, in the ongoing flow of a project.  It is only later, sometimes, that one realizes how helpful published pieces can be in a longer research project, like stepping stones in a stream.           

            As January turns to February and the annual submission season opens, or as you otherwise reflect on scholarly and other endeavors, we here at the blog wish you success in publication efforts and, more generally, insight into the past and productive engagement with the year ahead. 

 

References

1 Monica Eppinger, On Common Sense:  Lessons on Starting Over from post-Soviet Ukraine, in Studying Up, Down, and Sideways:  Anthropology at Work 192 (Rachael Stryker and Roberto Gonzalez eds., 2014).

2 See, e.g., LimorSamimian-Darash, Governing Through Time: Preparing for Future Threats to Health and Security, 33 Sociology of Health and Illness (2011).

3See, e.g., Limor Samimian-Darash, Preparedness for Potential Future Biothreats: Toward an Anthropology of Uncertainty, 54 Current Anthropology (2013).

4 See, e.g., Ryan Sayre, The Un-Thought of Preparedness:  Concealments of Disaster Preparedness in Tokyo's Everyday, 36 Anthropology and Humanism 215 (2011).

January 30, 2015 | Permalink | Comments (0)

Thursday, January 29, 2015

Eighth Worldwide GAJE Conference in Eskişehir, Turkey

We are pleased to announce the  Eighth Worldwide Global Alliance for Justice Education (GAJE)  Conference to be held Juy 22-28, 2015 in Eskisehir, Turkey.  The general theme of the conference is “Justice Education for a Just Society.”   

For further information, please click on this link:

http://www.gaje.org/8th-worldwide-conference

 

January 29, 2015 | Permalink | Comments (0)

Sunday, January 18, 2015

Extraordinary Rendition, Torture, and Illegal Transplants

It is no longer a secret that, in the aftermath of 9/11, American officials ran a secret detention program in which detainees were tortured abroad. The extraordinary rendition program aimed to outsource the interrogation and detention of suspected terrorists. Despite the assurances from then Secretary of State Condoleezza Rice that “where appropriate, the United States seeks assurances that transferred persons will not be tortured,” it is now clear that those assurances held little weight. However, the corrosive impact of that policy was not merely limited to the individuals transferred to the custody of other states. 

In yesterday’s New York Times, reporter Aida Alami detailed how Moroccan authorities used a CIA black site detention facility in that country to torture and terrorize the regime’s political opponents. This report comes in the wake of the Senate’s Torture Report which concluded that America’s resort to torture in the aftermath of 9/11 failed to produce actionable intelligence that saved American lives.  Unfortunately, the pain and humiliation inflicted on the individuals that the U.S. tortured is not the only cost of that misguided policy. Indeed, it appears that America’s  endorsement of torture and the creation of CIA detention centers on foreign soil furthered an (un)intended side effect-the use of torture to silence political dissent.

Although there is some evidence to suggest that CIA officers in at least one country objected to the host country’s use of torture on political dissidents. However, as this excerpt below from the Senate Report suggests, many of the American ‘debriefers’ who staffed these sites were mediocre, incompetent, and inexperienced and hardly had the standing and skills to discourage host countries from limited the use of “enhanced interrogation techniques” to actual terrorists. As the report cites:

With respect to the personnel at DETENTION SITE BLACK, the chief of Base wrote: 

"I am concerned at what appears to be a lack of resolve at Headquarters to

deploy to the field the brightest and most qualified officers for service at [the detention site]. Over the course of the last year the quality of personnel(debriefers and [security protective officers]) has declined significantly. With regard to debriefers, most are mediocre, a handfull [sic] are exceptional and more than a few are basically incompetent. From what we can determine there is no established methodology as to the selection of debriefers. Rather than look for their best, managers seem to be selecting either problem, underperforming officers, new, totally inexperienced officers or whomever seems to be willing and able to deploy at any given time. We see no evidence that thought is being given to deploying an 'A-Team.' The result, quite naturally, is the production of mediocre or, I dare say, useless intelligence ....

We have seen a similar deterioration in the quality of the security personnel deployed to the site . ... If this program truly does represent one of the agency's most secret activities then it defies logic why inexperienced, marginal,underperforming and/or officers with potentially significant

[counterintelligence] problems are permitted to deploy to this site. It is also important that we immediately inact [sic] some form of rigorous training

program." [Senate Report p. 173]

 

References

Aida Alami, “Morocco Crushed Dissent Using a U.S. Interrogation Site, Rights Advocates Say,” New York Times, January 17, 2015.

“Globalizing Torture: CIA Secret Detention and Extraordinary Rendition,” Open Society Justice Initiative, 2013. Available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf

U.S. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Dec. 13, 2013.

 

 

January 18, 2015 | Permalink | Comments (0)

Sunday, January 11, 2015

The Paris Attacks

Last week, a handful of radicalized extremists plunged parts of the City of Light into a paramilitary zone.  The twin attacks on Charlie Hebdo and a kosher grocery store led to the deaths of seventeen innocent individuals. Given that the extremists had at one time been on the radar of French intelligence, it is tempting to find fault with those authorities. However, given that it may be impossible to track every extremist who returns to France from the Middle East, France and indeed the western world faces a much difficult problem.  Can the citizenry live with the limits of the state's power to protect its populace or will the call to "do something" in the long run prove to be effective only at deepening religious divisions and anti-immigrant rhetoric?

January 11, 2015 | Permalink | Comments (0)

Friday, December 26, 2014

Comparative Law at AALS

AALS 2015 Meeting, January 3rd
 
10:30 am - 12:15 pm Africa and Comparative Law Joint Program Comparative Law Expanded: Methodology and Public Law in Nontraditional Comparative Legal Systems
 
Session Details
 
The program will bring together junior and senior scholars for a lively discussion of methodology and public law in nontraditional comparative law systems, through discussing works-in-progress in this field.  The program will be divided into three mini-panels of 35 minutes each, with works-in-progress given on two panels on which senior scholars will comment, and a final panel used for general discussion. Each senior commentator will present and comment on papers for 15 minutes and we will then have twenty minutes of general discussion for the first two panels. For the third panel we envisage 10 minutes for each commentator and 15 minutes for general discussion.
Speakers
 
Speaker from a Call for Papers: Vivian G. Curran, University of Pittsburgh School of Law
 
Moderator: Stephen J. Ellmann, New York Law School
Moderator: Susan C. Hascall, Duquesne University School of Law
 
Commentator: Duncan M. Kennedy, Harvard Law School
Speaker from a Call for Papers: Manoj Mate, Whittier Law School
 
Moderator: Intisar Rabb, Harvard Law School
Commentator: Teemu Ruskola, Emory University School of Law
Moderator: Sudha N. Setty, Western New England University School of Law
 
Date & Time
Start Date: 01/03/2015, 10:30 am End Date: 01/03/2015, 12:15 pm
 
 

December 26, 2014 | Permalink | Comments (0)