Thursday, December 4, 2014

The Grand Jury

As far as I can tell, the concept of lay participation in the decision to charge, as represented in the US grand jury, is a particularly US notion.  Originally, the grand jury was intended to assist law enforcement - its larger size was consistent with its function of reporting suspected crime in England that would not otherwise have come to the attention of law enforcement.   Gradually, as a transplant to the colonies, and as a protection against the arbitrary powers of the King, the grand jury took on a more protective role in the charging function.  Colloquially, the colonists felt they needed all the help they could get against the crown and its prosecutors.

But over time, as we know, the significance and independence of the grand jury was severely limited.  The requirement of grand jury indictment was never made applicable to the states as part of due process; over time, the courts repeatedly refused to require anything that made the grand jury look like it was adjudicating rather than simply accusing (e.g., exculpatory evidence, warnings, counsel, a standard of proof beyond probable cause).  And increasingly, as its role was minimized, the grand jury became less independent and an arm of the prosecution.  This is not surprising in some ways, because in virtually all other systems the charging function is solely in the hands of the prosecution (or, in inquisitorial systems, of the investigating magistrate). 

One never knows from day to day or even hour to hour (given the 24-hour-news cycle) which part of the criminal process will come under public scrutiny, but right now, this minute,  it's the grand jury, given the Brown and Garner no-bill votes.  Would we be better off without the grand jury?  Many states, of course, don't use grand juries.  Most systems internationally do not.  The question really is whether under its current operation, the involvement of a jury of lay people - the microcosm of democracy - makes the result more reliable.  What if the prosecutors in Ferguson and Staten Island had simply refused to charge the officers involved? 

The question contains the answer, of course.  Transparency isn't the answer, for while New York grand jury proceeedings are secret, the grand jury transcript in Missouri was made public and yet no one really believes the grand jury proceeding was properly conducted.  If it is going to continue to exist, the grand jury needs to be more independent.  Otherwise, we will see the kind of social damage that the Brown and Garner proceedings have caused - to the extent the grand jury process purports to enlist "the people" in what is essentially a prosecutor's charging decisions,  the message a grand jury vote will send will be even more divisive  -- and less responsive to public protest - than a charging decision made solely by an elected prosecutor. 



December 4, 2014 | Permalink | Comments (0)

Monday, December 1, 2014

Call for Participants: American Society of Comparative Law Mentorship Program

The American Society of Comparative Law invites participation in its Younger Comparativists Committee Mentorship Program.  

An initiative of the Linkages & Engagement Advisory Group of the ASCL's Younger Comparativists Committee, the Mentorship Program pairs senior scholars with junior scholars in a one-to-one mentoring relationship.  The goal is to promote professional development, scholarly collaboration, and stronger relationships across the field of comparative law.  Please note that participation in the Mentorship Program as a mentor or a mentee is limited to scholars affiliated with ASCL Member Institutions.

If you are interested in participating as either a mentor or as a mentee, please email Gene Mazo, a member of the Linkages & Engagement Advisory Group, at by Wednesday, December 3, 2014. In your email, please identify the following:

1. Full name and institutional affiliation; 

2. Field(s) of scholarly interest and expertise;

3. Email address;

4. Whether you wish to be a mentor or mentee.

The Linkages & Engagement Advisory Group will match senior scholars with junior scholars and send mutual introductions to each in mid-December.

December 1, 2014 | Permalink | Comments (0)

Saturday, November 29, 2014

Do Dead 'Victims' need Representation?

Although there has been a chorus of criticism of the recent grand jury decision in Ferguson, one issue that has not yet been raised is Americans' general mistrust of inquisitorial processes and government decision-making in general. In some respects the grand jury process is an anomaly in our criminal justice system. Setting aside the Ferguson decision, most often commentators complain that a grand jury is a prosecutor's tool and that suspects who are the targets of a grand jury investigation are just that-a target. Prosecutors who control the grand jury process structure the presentation of evidence to build a case that will satisfy the low standard of probable cause. Although the process is not designed to be adversarial, it also contains few procedural protections that might make the process a modern inquisitorial fact finding process as exists in countires like Germany.

In Ferguson, rather than package the witness lineup and evidence to meet the probable cause standard, the prosecutor in some respects functioned as the target's attorney as he choose not to hostily cross-examine the target while he failed to hide his disdain for other witnesses. In some respects, this is not surprising. American prosecutors are embedded in organizations where incentives reward them for functioning as adversaries. Given that prosecutors must work closely with the local police, in this case, the adversary was the Brown family and any witness who claimed that Officer Wilson acted unreasonably.

While the prosecutor in Ferguson claimed that, by presenting an abundance of evidence, he was letting the grand jury decide Officer Wilson's fate, in fact the prosecutor communicated his intentions to the grand jury by choosing which witnesses to cross examine and which witnesses to treat with kid gloves.

If we believe that prosecutors are incapable of functioning objectively, how might we reform the grand jury process? One interesting solution is the German institution of a collateral prosecutor (Nebenklaeger). In violent crime cases like rape, the victim or the victim's survivors are entitled to request that the court appoint an attorney to represent the victim during the trial. The collateral prosecutor is allowed to question witnesses and to present evidence. In one rape trial that I observed in Germany, the collateral prosecutor not only was actively engaged in questioning witneses, but she played an important role in convincing the suspect to confess and to accept a deal.

It is unlikely that the U.S. would embrace the concept of a collateral prosecutor. Nor would the existence of a collateral prosecutor correct the fundamental problem of our criminal justice system. Given that trials have become a rarity and that our public defender network is chronically underfunded, a prosecutor's case is seldom tested by a public trial. In the plea negotiation process, prosecutors may often use the promise of high mandatory minimum sentences as leverage against a defendant to induce a plea. In some respects, the grand jury decision in Ferguson, mirrors the type of justice that we have come to expect in our system writ large-a prosecutor's version of the truth.

November 29, 2014 | Permalink | Comments (0)

Tuesday, November 25, 2014

Limits on Undercover Activity Revisited

This article was co-authored by Rafael Wolff, a Federal Judge in Brazil, and an SJD candidate at Pace Law School, in White Plains, New York.


In a recent blog we compared the seemingly unrestricted and unregulated use of undercover agents in the United States – bounded, in essence, only by the broad requirements of the Due Process Clause – to the law in Brazil, where the use of undercover agents is limited by statute to specific crimes, a search warrant is required, and there must be a demonstration that no other investigatory method is effective.    Two developments have occurred since the last blog that warrant revisiting the use of undercover operations in the two systems and prompts two new reflections.

First, a follow-up article in The New York Times, reports that the use of undercover operations has expanded “with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing….”  The justification, apparently, is the efficiency and cost-savings associated with traditional investigation through tips, legwork, interviews, search warrants, and surveillance.  No probable cause or search warrant is required.

Why do we allow or even encourage such widespread deception?

Maybe it’s just one of the choices we have to make given our Constitution.  Our historic fear of centralized authority and the accompanying protection of the individual against government intrusion makes some other more overt investigatory techniques unavailable to us.  Thus, for example, in the United Kingdom, recent terrorist legislation improved the Government’s ability to investigate and prevent terrorism by extending the permissible periods of pre-charge detention.  Imminent terrorist events may now be averted by simply breaking up the terrorism groups, and enhanced questioning can be accomplished early on.  Our bill of rights would prevent that.  Thus, instead of investigating overtly, we investigate by deception.

To be sure, this is an oversimplification.  But think about this:  Can all of this suspicion and deception really be good for society?  And does it really protect the individual from government intrusion in the long run?

Up until now, existing agency rules and guidelines have been inadequate.  Now, apparently in response to the “Fast and Furious” undercover operation that allowed guns to travel to Mexico, the Department of Justice has  issued internal guidelines designed to “tighten oversight” of undercover operations.  Before prosecutors approve of using undercover investigation, they must consider “whether an operation identifies a ‘clearly ‘ defined objective, whether it is truly necessary, whether it targets ‘significant criminal actors or entities,’ and other factors. “   This is a positive development.

Second, in our prior blog we compared the relatively unrestricted use of undercover agents in the United States with the much more restricted use in Brazil, where among other things, a warrant is required and undercover operations may only be undertaken with respect to certain serious, statutorily enumerated crimes.  Further investigation and discussion reveals, however, that Brazil defines “undercover operations” much more narrowly than does the United States so that these strict requirements only apply to certain undercover conduct.  In fact, Brazilian statutes (Laws 11.343/06 and 12.850/13) use the term “infiltrated agent” to define the regulated investigative activity, not “undercover agent.”  Thus, the definition only applies to those operations that involve agents assuming false identities to infiltrate criminal organizations.   The use of plain clothes officers to buy drugs without the use of a false identification would not be regulated by the statute.  In such cases, the need for a warrant is not even discussed in the case law.   (STJ, AgRg no AREsp 1.956/SP, Rel. Ministra MARIA THEREZA DE ASSIS MOURA, SEXTA TURMA, julgado em 21/06/2011, DJe 01/07/2011).  In fact, Brazil has almost no cases  involving undercover agents:  although he has been working in criminal cases since 2006, Judge Wolff has never seen a case in which an undercover agent was used.  Thus, the kind of conduct reported in The Times, for example --  the presence of a police officer in the middle of a political protest --  would not be considered conduct by an “infiltrated agent,” as long as a false identity is not used to allow infiltration in a criminal organization.  On the other hand, an officer who simulates being a minor to uncover a criminal organization involving pedophilia, for example, would indeed come under the definition and would be subject to the warrant requirement.

So, does Brazil tolerate as much deception as the United States?  Our conclusion remains that Brazil’s statutory limits restrict deception and protect privacy to a much greater extent than do the US due process clause or recent agency guidelines.  Considering the efficiency of undercover operations, but considering the risks to third party privacy and even to the agent’s security, maybe Brazil needs to use more, and the United States less, of this particularly interesting investigative tool.




November 25, 2014 | Permalink | Comments (0)

Tuesday, November 18, 2014

Descriptive versus Normative: Interdisciplinary Tensions

Interdisciplinary projects seem prone to certain tensions.  A persistent one at the intersection of anthropology and law is the pull between the descriptive and the normative register.  It came up for me most recently as I presented work on land privatization and oligarchy in Ukraine at the Comparative Law seminar at Harvard Law School last week.  (Special thanks to Intisar Rabb and Bill Alford for the opportunity to share ideas with such a thoughtful group.)  Several students asked me to specify what Ukrainians should  have done, what kind of law they should have passed, what reforms they should have undertaken.  

This kind of question comes up almost every time I present work on Ukraine in the legal academy although the work is not rendered in a normative register; it has never yet come up from an anthropology audience.  Disciplinary aesthetics and ethics clash in this question:  the pragmatics of legal discourse demand exactly the kind of response that an anthropologist might not supply.  After all, anthropologists typically undertake fieldwork and "embed" themselves in unfamiliar social networks in order to understand their interlocutors, not to tell them what to do.  More subtlely, this kind of question also sets up a clash of temporalities:  anthropology asks what people have been doing; law, in this vein, asks what they should do in the future.

Eugen Ehrlich offers one way of thinking through the descriptive-normative conundrum.  As I describe in greater detail here, in Ehrlich's legal reform program, ethnographic work may be used in the service of legal decision-making without having been driven by the purpose of telling his interlocutors what to do.  Rather, it is used to inform judges in a process that would confer authority on ethnographic subjects.  Ehrlich formulated his program to make law responsive to a pluralistic society, a project that still seems timely.  

I'm still mulling over the good questions I got last week and how Ehrlich's ideas are helping me think through them.  I may share a few more ideas on these lines in upcoming posts.




November 18, 2014 | Permalink | Comments (0)

Sunday, November 16, 2014

Access to Counsel During Criminal Proceedings: Call for Participation

The Younger Comparativists Committee (“YCC”) of the American Society of Comparative Law (“ASCL”) is pleased to issue this Call for Participants for one (1) YCC scholar to attend a conference on “Access to Counsel During Criminal Proceedings:  Reshaping Rights and Remedies,” to be held on May 18-20, 2015, at theUniversity of Warwick School of Law in England.  There will be separate panels on legal advice to suspects and accused persons; funding legal advice and monitoring quality standards; and legal remedies for violation of rights or standards.
The conference will accept up to one (1) YCC scholar affiliated with an ASCL Member Institution.
The conference is organized jointly by the University of Basel, University of Bologna, University of North Carolina School of Law,and University of Warwick School of Law.
Submissions will be accepted from younger scholars who: (1) are affiliated with an ASCL Member Institution; and (2) have been engaged as a law professor, lecturer, fellow, or in another academic capacity for no more than ten years as of June 30, 2015.
Submission Instructions
To submit an application, scholars should no later than December 1, 2014, email a CV/resume and a statement of up to two pages indicating how they could contribute to the conference and how the conference might assist them in their own scholarly projects, to the following email address:
Notification and Participation Requirements
Successful applicants will be notified no later than January 1, 2015.
Participants will be expected to write a paper for the conference.  The conference papers will be collectively published in a law journal or a book.
There is no cost to participate in the conference but successful participants are responsible for securing their own funding for travel and lodging.  The selected scholar will receive a stipend to assist his or her attendance at the conference.
The YCC acknowledges Professor Michael Corrado and Professor Richard Myers, both of University of North Carolina School of Law, for inviting the participation of YCC scholars and thanks the ASCL for its generous support of younger scholars.
Please direct inquiries in connection with YCC participation in this conference to Professor Ozan Varol (Lewis & Clark Law School), Vice-Chair of the YCC, by email at

November 16, 2014 | Permalink | Comments (0)

Monday, November 10, 2014

Prosecutorial Discretion Revisited: Charging

When a draft amicus brief in Yates v. United States arrived in my mail last semester, I thought it must have been April Fool’s Day and I actually checked the calendar. Here was a case in which a United States Attorney had charged a fisherman under 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation.” Surely this statute had been intended to reach destruction of evidence in white collar criminal prosecutions.  Yet Mr. Yates had thrown overboard a batch of fish that had been caught illegally because they were undersized.  He released a bunch of fish.  Yates was convicted and sentenced to thirty days in jail. The conviction was affirmed.  Sadly, I discovered, this was not a joke.

The case made its way to the Supreme Court, where certiorari was granted, and where the case was argued last week. The Justices, apparently, and appropriately, did not find the whole thing funny. Here is a link to a summary of the oral argument.

Two comparative points worth making.

First, as Justice Scalia observed, we do not have any meaningful federal guidelines that limit a prosecutor’s discretion in charging, beyond the broad requirements of due process of law. And, as the government pointed out at the oral argument, the United States Attorneys’ Manual, which might otherwise provide some restraint, only advises the prosecutors to bring the most serious charge that can be proven on the facts. Other jurisdictions, like the United Kingdom, for example, have legislatively enacted guidelines and substantial internal rules and guidelines that address a prosecutor’s charging discretion.

Second, this is the second time in recent memory that the Court has been forced to grapple with what appears to be prosecutorial overreaching in charging. Again, as Justice Scalia pointed out in frustration at the Yates argument, last term in Bond v. United States, the Court reversed a conviction brought under a law intended to prevent the spread of chemical weapons. In that case, a woman was charged under that law for using some sort of chemical to try to poison her husband’s lover.

To be sure, two cases does not an avalanche make. And many of us have had the experience of watching an appellate court excoriate the government or prosecution at oral argument only to have the court ultimately affirm the conviction. But it will be interesting to see if the Supreme Court takes the opportunity to both send a message about the limits of prosecutorial discretion and to articulate a need for express standards governing the decision to charge that do more than remind prosecutors to bring the highest charge possible.   One hopes the Court will continue to grant certiorari to review the charging function.

November 10, 2014 | Permalink | Comments (0)

Thursday, November 6, 2014

Waiting for Ferguson

As many readers know, protests broke out in the U.S. this summer after police shot and killed an unarmed African-American teenager, Michael Brown, in Ferguson, Missouri on August 9.  Ferguson is part of the St. Louis area, roughly 10 miles (16 km) from the law school where I teach, Saint Louis University.  I returned from a summer of fieldwork in Ukraine in time to find St. Louis erupt in outrage, protest, and other civic labors.  The shooting brought to a head concerns over perceived racial disparities in police conduct.  Other issues, like municipal management, local budgeting, and local court procedures became linked in analysis and perception with practices that reenforce structural racism and perpetuate poverty. (My colleague Marcia McCormick has blogged about SLU Law and other local initiatives to address these problems.)  Protests, anger, disgust, and fear were re-ignited on October 8 when an off-duty police officer moonlighting as a security guard shot and killed a second African-American teenager, VonDerrit D. Myers, Jr., whose family is resident in my neighborhood and whose father works at Saint Louis University.  These and other incidents raise fears that police target citizens for attention not in crime-stopping or criminal investigation, but because of citizen phenotype and police cognition patterns.  (To look into your own, try the Harvard test.)

Two commonalities invite comparison between late summer in Ferguson and deep winter in Kyiv.  First is the form of public action, street protest.  It speaks of an electorate that, despite a polity's record of holding fair elections, resorts to alternatives to usual democratic processes.  The second, and most striking, commonality is the kind of spark that ignited protest, the relationship between citizen death at the hands of police and public assessments of state legitimacy.


 (My photo above features of one of several makeshift memorials in the protest area of central Kyiv to the first protester to die last winter in Ukraine, Serhiy Nigoyan, memorialized as a secular martyr.  The AP/Jeff Roberson photo below shows the memorial at the site of Michael Brown's shooting.) 

A makeshift memorial sits in the middle of the street where 18-year-old Michael Brown was shot and killed by police, Monday, Aug. 11, 2014, in Ferguson, Mo. The FBI has opened an investigation into the fatal shooting of an unarmed black teenager on Saturday whose death stirred unrest in a St. Louis suburb. (AP Photo/Jeff Roberson)


Here in the U.S., Michael Brown's death opened legitimacy to serious reflection, articulated as questions regarding police tactics.  After Ukraine, the narrow scope of this critique of state power is striking.  In Ukraine, one citizen death at the hands of police authorities was seen as absolutely illegitimate.  Protests had already been underway for two months, but after Nigoyan's death, the intensity of resistance escalated.  Within a month, a government fell and its top office-holders fled the country.  In the U.S., protesters haven't even been able to secure reassignment of a local prosecutor in whom they fear bias.  This difference -- in expectations, measures, and consequences -- has many roots but is attributable in part, I think, to differential trust in the courts.  Although wary of the police, in the U.S. the protesting public are giving courts and judicial processes the benefit of the doubt and time to work through their deliberations.  Protesters last winter in Ukraine did not feel they had that luxury.

The U.S. protest situation may change dramatically soon.  A grand jury is still deliberating whether to indict the police officer who shot Michael Brown, Darren Wilson.  Rumor is running rampant in local legal circles that the grand jury will return a "no true bill," meaning the officer will not be indicted.  I want to make clear that this rumor is completely unproven; I repeat it only to report on the near-term mindset here.  If the grand jury does announce no indictment will be returned, two predictions:  

1) challenges will broaden from the legitimacy of police tactics to the legitimacy of state institutions, and

2) reaction will change from protest to riot.

Apparently, I'm not alone in anticipating trouble.  Police are preparing and civic groups are formulating rules of engagement and otherwise pre-positioning calls for measured response.

Of course, "trouble" can be short-term (as in the previous paragraph) or long-term (as in racial disparities in police conduct).  These protests are notable in merging temporalities that are often bifurcated and "trouble," compartmentalized.  Ferguson and Kyiv are both dominated these days by anxiety over perceptions of legitimacy.  What may get lost amid the noise is that responses to both incidents, in Ukraine and in the U.S., reveal authority and state institutions in formation.

November 6, 2014 | Permalink | Comments (0)

Saturday, November 1, 2014

Limits on Undercover Activity

This article was co-authored by Rafael Wolff, a Federal Judge in Brazil, and an SJD candidate at Pace Law School, in White Plains, New York.


    An editorial in yesterday’s New York Times about two shocking instances of subterfuge by FBI agents raises questions about fair investigative tactics by government agents.  An interesting comparison between the limits of undercover activity by government agents two different jurisdictions, the United States and Brazil, leads to further thought about the underlying US balance between our interests in privacy, our separation-of-powers-based willingness to give our prosecutors and police tremendous discretion in law enforcement, and our desire for crime control.  In Brazil, the use of undercover agents demands a judicial warrant authorizing the infiltration of a criminal organization.  This is expressly stated by Law 11.343/06 (Article 53, I) and Law 12.850/13 (Article 10). A judge may only issue such a warrant if the government establishes: 1) evidence of organized criminal activities or narcotics offenses; and 2)  it is impossible to produce the evidence by another less intrusive way (Law 12.850/13, Article 10).  Those are both federal law, as just the Federal Congress can legislate about criminal procedure in that Country (C.F., Article 22, I).

    Organized criminal activity occurs when there is a criminal organization of four or more individuals that functions in a structured way and with a division of tasks, even informally, to obtain direct or indirect criminal advantage.  To be considered a criminal organization, the criminal activity should be punishable by a maximum prison sentence of more than four years. The concept of the statute is similar, but not identical, to the one established in the United Nations Convention against Transnational Organized Crime, under Article 1 of Law 12.850/13. Brazil is bound by that convention, where the targeted crime starts or consummates within Brazilian territory. The definition also includes an organized terrorist organization that is recognized by an international organization as such, that intends to practice terror or engage in preparatory acts on the territory of Brazil. In both cases, the use of undercover agents is authorized if it is impossible to produce evidence by another, less intrusive means.

    The use of undercover agents is also legal in the investigation of crimes created by Law 11.343/06, that is, in investigations into narcotics crimes.  This category was included by the legislature because of the considerable risk of danger in the organized narcotics business.

    The situation is entirely different in the United States. Here, it is clear that police and prosecutorial use of undercover agents is limited only by the broad and permissive boundaries of the due process clause. See, United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991). Unlike Brazil, in the United States there is no requirement of a warrant or of judicial supervision of any kind regarding undercover agents. In fact, the Supreme Court has made clear that the use of undercover agents – even when the agent wears a wire – does not constitute a "search" under the Fourth Amendment. Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Hoffa v. United States, 385 U.S. 293 (1966); and United States v. White, 401 U.S. 745 (1971). As the Court has reasoned, one runs the risk of being betrayed by one's criminal associates, so one has no legitimate expectation of privacy when having an inculpatory conversation or transaction with some associate who turns out to be a confidential informant or even an undercover officer. Given that there is no "search," there is no warrant requirement or a requirement even of probable cause or reasonable suspicion to use undercover agents to obtain evidence. Nor are there any statutory provisions governing the practice. This is true even if an undercover agent is in a private home, so long as the homeowner allowed the agent into the house. The only limitation is whether an undercover officer’s behavior “shocks the conscience” of the court.

    The Sixth Amendment right to counsel, which attaches after arraignment, may limit the use of undercover agents – but only after charges have been brought and the defendant has been arraigned. That is because, under Massiah v. United States, 377 U.S. 201 (1964), and its progeny, law enforcement may not contact a defendant without going through defense counsel.

It’s doubtful that there is any consensus for restricting the use of undercover agents, particularly now, in this fear-of-terrorism environment. But Brazil’s restriction of undercover intrusions to cases involving organized crime, large-scale narcotics, and terrorism – to seriously dangerous organizational criminal behavior that is – should suffice to protect against serious criminal conduct while protecting the increasingly shrinking sphere of privacy for the rest of us. As a practical matter, at least anecdotally, those are the areas where undercover agents are most likely to be needed and used. And the requirement of a showing that there is no less intrusive means to secure the evidence sought should not be a seriously difficult evidential burden in such cases. Given the courts’ willingness to impose only the most nominal restrictions, the way to do this, of course, would be the way Brazil accomplished it – through legislation

November 1, 2014 | Permalink | Comments (0)

Tuesday, October 28, 2014

Confirmation Bias in Adversarial vs. Inquisitorial Systems

I'm working on finishing a book chapter comparing pre-trial practices in the German and American criminal justice systems.  Since the emergence of confession bargaining in Germany, some scholars have posited that the German system is losing its advantage in the truth-finding process and converging towards the American system. Yet I wonder whether the different incentive systems in both systems may cut in diverse directions. In many instances, the first question that a German prosecutor will ask when a new file crosses their desk is: "Can I dismiss/close this case?" I have labelled this an "in and out box" mentality. In the U.S., the prosecutor is likely to be focused on charging the most serious charges possible to gain leverage entering into the plea negotiation process. Pizzi has chastized U.S. prosecutors for their "conviction mentality."

What happens if we graft the impact of confirmation bias onto the pre-existing incentive structures? Do German prosecutors then discount evidence through a lens of seeking to justify a decision to decline prosecution because it is in the public interest to do so? Likewise, do American prosecutors view new evidence as a way to confirm their suspicions of guilt? To be sure these hypotheses are a bit t00 general to apply across the board, but I wonder what is it about the German system that it seems to produce fewer wrongful convictions than in the U.S.

October 28, 2014 | Permalink | Comments (0)

Sunday, October 26, 2014

Position Announcement: Comparative Legal Writing & Research

University of Detroit Mercy School of Law

Dual Degree Comparative Legal Writing & Research

Tenure or Tenure-Track Faculty Member

 The University of Detroit Mercy School of Law seeks applicants for a tenure or tenure-track faculty position to teach Comparative Legal Writing and Research in itsCanadian & American Dual JD Program, commencing July 2015.

 About the Position

 The successful candidate will play a key part in the students’ introduction to the Dual JD Degree Program and will be responsible for teaching one section of the year-long, nine-credit hour Comparative Legal Research and Writing course.  Typically, each section consists of approximately 30 students and is supported by at least one Teaching Assistant.

 About UDM Law

 UDM Law offers a unique and innovative curriculum that complements traditional theory and doctrine-based course work with practical learning and includes required Writing Across the Curriculum and Ethics Across the Curriculum components. UDM Law is one of only a few law schools in the country that requires students to participate in a clinical experience prior to graduation, and UDM Law is proud to offer six clinics from which students may choose.  Additionally, students are also required to complete at least one upper-level writing course, one global/international perspectives course, and one Law Firm Program course (an innovative simulated law firm practicum). 

 The School of Law is located at the Riverfront Campus in Downtown Detroit and is within  walking distance of federal, state, and municipal courts, the region’s largest law firms, and  major corporations, including General Motors, Quicken Loans, and Comerica Bank.  The School is also uniquely situated two blocks from the Detroit-Windsor Tunnel, an international border crossing that links Detroit, Michigan with Windsor, Ontario, Canada. 

 About the Dual JD Program

 The close proximity to Canada has allowed UDM Law to partner with the Faculty of Law at the University of Windsor (Canada) to create a Dual JD Program that is the only program of its kind in the country.  Students are concurrently enrolled at both UDM and University of Windsor and attend classes that are fully integrated and wholly comparative, and taught by faculty at both institutions.  (Typically, the commute between the Detroit and Windsor law school campuses is about 20 minutes.)  Upon successful completion of the three-year program, students earn both an ABA-accredited JD and an accredited Canadian JD, and are eligible to sit for the bar examinations in both jurisdictions.  (Completing the two degrees would require either six years of study if done independently or four years if attending other dual programs.)

About the Comparative Legal Research & Writing Course

The course is a comprehensive comparative research, writing, and analysis course that is specifically designed for the Dual JD Program.  Students learn the similarities and differences between the American and Canadian legal systems, including governmental structure, court structure, jurisdiction, procedure, and ethics. Students also learn fundamental lawyering skills and explore the research, writing, and citation protocols in each country.  The course is structured so that for every major American assignment, there is a comparative Canadian assignment. The highlight of the course involves student participation in both an American and Canadian moot court experience.

About Detroit

Downtown Detroit offers a dynamic variety of cultural, entertainment, and sporting attractions that are easily accessible from the Law School, including the Detroit Institute of Arts (housing a world-class art collection), the Detroit Symphony, the Detroit Opera House, the Detroit Zoo, the Henry Ford Museum, Eastern Market (historic farmer’s market), and major league sports teams.

About University of Detroit Mercy

Michigan’s largest, most comprehensive private university, the University of Detroit Mercy is an independent Catholic institution of higher education sponsored by the Religious Sisters of Mercy and Society of Jesus.  The university seeks qualified candidates who will contribute to the University's urban mission, commitment to diversity, and tradition of scholarly excellence.  The University of Detroit Mercy is an Equal Opportunity Affirmative Action Employer with a diverse faculty and student body and welcomes persons of all backgrounds.


Candidates must have a law degree from an accredited U.S. or Canadian law school, strong academic background, superior writing and communication skills, and a record or the promise of excellence and high scholarly achievement.  Preference will be given to candidates with law degrees, practice experience or significant exposure in both jurisdictions.

Applicants should send a curriculum vitae, a cover letter describing the applicant’s qualifications for the position, and details of at least three references to Professor Gary Maveal, Chair of Faculty Recruitment, University of Detroit Mercy School of Law, 651 E. Jefferson, Detroit, MI 48226.  Email applications may be sent to Review of applications will begin immediately and will continue until the position is filled.

October 26, 2014 | Permalink | Comments (0)

Thursday, October 23, 2014

Evaluating Prosecutorial Conduct: DOJ Memoranda

From a comparative criminal procedure perspective, one of the striing differences between the United States and other jurisdictions, for example, the United Kingdom, is the absence here of internal prosecutorial manuals or directives that set forth standards or criteria for prosecutorial decision making and against which such prosecutorial conduct may be judged.  State prosecutor's offices rarely, if ever, have such documents and, if they do, they are rarely available for public scrutiny.  One refreshing exception, however, is the US Department of Justice US Attorney's Manual.  Although phrased in general terms in places, this manual addresses psoecutorial decision making throughout the process.

Another related and refreshing exception is the availability of DOJ Memoranda addressed to US attorneys concerning issues that may arise in the course of a prosecution. For example, last week, Deputy Attorney General James M. Cole issued a memorandum to federal prosecutors advising them that they should “no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack, or, when permitted by circuit law, made on direct appeal.” As to cases in which such waivers had already been entered, the memorandum advises that federal  prosecutors should “decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.”

This is an important memo, not only because it presents a standard against which prosecutors can now be held accountable, but also because the issue of waiver of rights by pleading guilty is a critical one.  The DOJ memo represents a break in the growing momentum of waiver by guilty plea:  it seems that over the years defendants have been asked to waive more and more rights as part of a plea bargain.  Ultimately, although problematic, many defendants are now required to waive the right to appeal or to appeal and collateral attack as part of a guilty plea.   The DOJ directive mark an important exception to these practices.

While the U.S. Supreme Court has not ruled on the validity of waivers of the right to raise a claim of ineffective assistance of counsel, the Court has clearly held that the right to effective assistance of counsel applies to guilty pleas. Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Following these holdings, every circuit court to address the validity of a waiver of the right to effective assistance of counsel – ten of twelve circuits – has upheld the waiver. United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998); United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994); Davila v. United States, 258 F.3d 448 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000); Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). Interestingly, however, twelve state ethics opinions have held that insisting on such a waiver is unethical.  See, e.g., United States v. Kentucky Bar Ass'n, 2013-SC-000270-KB (Ky. Aug. 21, 2014), and cases cited in footnote 37 therein. In addition, in a 2013 113E Resolution, the American Bar Association declared its opposition to ineffective assistance of counsel (IAC) waivers, and in October 2012 the National Association Criminal Defense Lawyers (NACDL) has issued a formal opinion (12-02) finding it unethical for defense lawyers to participate in such waivers.

Finally, there are those who wonder whether the prosecution (or the courts) can or should do more when confronted by deficient performance of defense counsel. See, e.g., Vanessa Merton, What Do You Do When You Meet a "Walking Violation of the Sixth Amendment" If You're Trying to Put That Lawyer's Client in Jail?69 Fordham L. Rev. 997 (2000). They are on the front lines, if you will; aside from the ethical obligation to report unethical conduct by other lawyers, prosecutors generally have no duty to protect a defendant from the ineffectiveness of his or her counsel. Thankfully, by virtue of the DOJ memorandum, federal prosecutors have accepted the duty not to participate in hiding these claims from review.


October 23, 2014 | Permalink | Comments (0)

Sunday, October 19, 2014

Back from China

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.

October 19, 2014 | Permalink | Comments (0)

Tuesday, October 14, 2014

Scrutinizing the Basis for Jury Verdicts

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.

October 14, 2014 | Permalink | Comments (0)

Tuesday, October 7, 2014

Obituary: H. Patrick Glenn

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:

October 7, 2014 | Permalink | Comments (0)

Monday, September 29, 2014

The Justice Gap

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.

September 29, 2014 | Permalink | Comments (0)

Sunday, September 28, 2014

The Execution Order has been Signed

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.


September 28, 2014 | Permalink | Comments (0)

Monday, September 22, 2014

Annual Comparative Law Work-in-Progress Workshop

March 6 and 7, 2015

Princeton University

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 ( 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.

September 22, 2014 | Permalink | Comments (0)

Friday, September 19, 2014

Announcement: Call for Papers, Comparative and African Law

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

Washington DC


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,; and Susan Hascall, Chair, Section on African Law,  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,

Intisar Rabb, Chair, Section on Comparative Law,

Stephen Ellmann, Chair-Elect, Section on African Law,

Sudha Setty, Chair-Elect, Comparative Law Section,





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


September 19, 2014 | Permalink | Comments (0)

Monday, September 15, 2014

Refusing to Spy

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.

September 15, 2014 | Permalink | Comments (0)