Friday, December 26, 2014
Monday, December 22, 2014
Between “Juristocracy” and the “Court for the One Percent”: The Brazilian Federal Supreme Court and the Narrative of Economic Inequality
The following guest post was written by Professor Juliano Zaiden Benvindo of the University of Brasilia, Brazil.
Studies on inequality are often appealing. Either because they reveal how human nature and overall society strategically behave or because they might affect us by some means, we are usually receptive to this debate. The recent impressive bestselling book Capital in the Twenty-First Century, written by the French economist Thomas Piketty, in which he “devoted essentially to understanding the historical dynamics of wealth and income” is a clear example of how powerful and influential a thesis on wealth and income inequality can be. At times of increasing inequality in different parts of the world, this result is naturally enhanced, and it is no wonder that other interesting connections with this debate appear here and there. Constitutional law is no exception. As it directly affects the debate over justice and resource distribution, numerous papers have attempted to explain how this rise of inequality sparks serious outcomes in constitutional law, and how legal institutions behave in such critical moments. The recent Michele Gilman’s A Court for the One Percent: How the Supreme Court Contributes to Economic Inequalityas well as Adam Lioz’s Breaking the Vicious Cycle: How the Supreme Court Helped Create the Inequality Era and Why a New Jurisprudence Must Lead Us Outfollow this path. The argument they raise stems from the perception that the US Supreme Court has clearly furthered economic inequality in distinct areas of social life and “eviscerated key protections that prevent wealthy interests and individuals from translating economic might directly into political power.” This perception may also be transposed to other constitutional realities, especially where social inequality is historically a serious issue. How inequality and Supreme Courts’ decisions intertwine with each other is indeed a matter that deserves further analytical approaches. For in the end this concerns the very legitimacy of Supreme Courts, as long as the argument of protection of minorities can fall apart, empirical and theoretical investigations as such gain more significance.
Those works connecting inequality with US Supreme Court’s decisions find strong evidence that the United States is facing a vicious cycle wherein, ultimately, the democratic process is structurally afflicted, as it is “helping to protect a very powerful minority at the expense of the majority.”  Although not directly examining the US Supreme Court, it is interesting to observe that Ran Hirschl’s thesis of his masterly book Towards Juristocracy had already shed some light on this discussion through the emphasis on the “self-interest hegemonic preservation” of threatened political, economic, and judicial elites. His diagnosis has proven not only correct as regards constitutionalization and judicial review and how elites make use of them, but also the conclusion that this movement “has utterly failed to promote progressive or egalitarian notions of distributive justice in a meaningful way” coheres somehow with those more recent academic studies on inequality. Besides, as a natural outcome of this “hegemonic preservation” of elites, inequality appears as a structural feature of extractive institutional practices as they deviate from the course of full inclusion of disadvantaged and excluded social groups. To not include these groups becomes thereby a strategy of self-preservation, and the Supreme Court, as well as other political and legal institutions, a tool for strengthening this strategy. The above mentioned vicious cycle is well portrayed in this environment, and it becomes more evident in societies where inequality strongly prevails.
In this respect, Brazil seems to be faced with similar dilemmas. It is well known that Brazil is one of the world’s most unequal countries, despite its expansion of income and employment in the last years. Even so, according to the Brazilian Institute for Geography and Statistics (IBGE), in 2012, while the richest 10% of the population absorbed 41,9% of total income, the poorest 10%, in turn, only appropriated 1,1% of it. Another influential study revealed that, between 2006 and 2012, the richest 1% absorbed 25% of all income, and that some stability in the income distribution was maintained. Moreover, according to this article, “the richest are more resistant to decline in inequality than the rest of the population.”  The struggle between social groups is thereby visible and it is no surprise that there is a sort of “hegemonic preservation” of elites being undertaken by the Judiciary, and particularly the Brazilian Federal Supreme Court. Many of the conclusions those above studies have drawn, albeit the contextual differences, apply here too. The richest, who are the most resistant to change, will make use of the legal institutions as a form of “hegemonic preservation,” setting thereby limits on the achievements of other social groups towards inclusion. There is possibly a strong connection between Brazilian Federal Supreme Court’s decisions and inequality, even though, as it happens in the United States, the mainstream literature still keeps saying that the Supreme Court’s role is to protect minorities and further distributive justice, and that history has proven it so.
The diagnosis Michele Gilman presents that “the judicial branch is rarely part of the narrative of economic inequality, despite its significant impact” is fully harmonized with the Brazilian reality. For example, Gilmar Mendes, one of the most influential scholars and a Justice of the Brazilian Federal Supreme Court, categorically says that “nowadays, we have such a complete and well-structured defense system for the Constitution that, in particular cases, it meets the needs of today’s most advanced legal doctrines entirely,” and this is particularly due to its capacity to protect citizen’s rights, freedoms, and guarantees. The subsequent argument in favor of Brazilian Federal Supreme Court’s more activist behavior, as it has proven real in the last years, turns out to be easily accepted and repeated by the mainstream literature. Still, as long as empirical analyses start to pop up, this magical aura surrounding the Supreme Court’s activities literature creates comes into conflict with the reality. Especially, the narrative of economic inequality plays an interesting and significant role against this discourse. The question is: Has the Supreme Court really protected minorities and furthered distributive justice? Or, on the contrary, has it spurred inequality by protecting the interests of hegemonic social groups against any possibility of creative destruction of their status quo?
By placing side by side the mainstream literature and empirical analyses, the second question seems, at first glance, more accurate. This obviously does not mean that the Brazilian Supreme Court did not protect minorities and further distributive justice whatsoever. Yet, a recent study carried out at the University of Brasilia, concluded that, at least in the centralized system of judicial review, from 1988 to 2012, only 11% of all cases judged favorably were indeed in the field of basic rights, but, even in those cases, about 60% of all decisions were related somehow to corporate interests. In the diffuse system of judicial review, researches are still to be made, but it is already clear that in the specific areas of market and corporations, unions and labor law, health, taxes, and property, just to name a few, we could find a tendency to favor the interests of capital. Therefore, that argument that, in Brazil, “we have such a complete and well-structured defense system for the Constitution” just gives one side of the story and ought to be challenged and revisited.
Comparative constitutional law is faced with the dilemma of examining the movements of Supreme Courts towards activism, on the one hand, and their practices of furthering inequality, on the other. After all, at the core of this debate lies the argument of their legitimacy. But it also shows the strategic behavior of social groups who are somehow making use of the legal institutions to keep their comfort zones untouched. As Gilman says, this has a “significant impact.” In years of “[Courts] for the One Percent” and “Juristocracy”, that narrative of economic inequality and the narrative of supreme courts have to effectively work together.
 Thomas Piketty, Capital in the Twenty-First Century vii (The Belknap Press of Harvard University Press. 2014).
 Michele Gilman, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, Utah Law Review, 1 (2014).
 Adam Lioz, Breaking the Vicious Cycle: How the Supreme Court Helped Create the Inequality Era and Why a New Jurisprudence Must Lead us Out The Changing Landscape of Election Law, 43 Seton Hall L. Rev. 1227, 1231 (2013).
 Gilman, Utah Law Review, 1 (2014).
 Hirschl’s focus is on Canada’s. Israel’s, New Zealand’s, and South Africa’s constitutional experiences
 Ran Hirschl, Towards Juristocracy : The Origins and Consequences of the New Constitutionalism 11-12 (Harvard University Press. 2004).
 Id. at, 14.
 See Daron Acemoglu & James A. Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (Crown Business. 2012).
 Instituto Brasileiro de Geografia e Estatística (IBGE), Síntese de Indicadores Sociais: Uma Análise das Condições de Vida da População Brasileira 2013. Rio de Janeiro, 2013, p. 173. Available at: http://www.ibge.gov.br/home/estatistica/populacao/condicaodevida/indicadoresminimos/sinteseindicsociais2013/ (Accessed December, 17th).
 See Medeiros, Marcelo; Souza, Pedro H. G. F.; Castro, Fabio Avila. O Topo da Distribuição de Renda no Brasil: primeiras estimativas com dados tributários e comparação com pesquisas domiciliares, 2006- 2012, p. 13. (August 14, 2014). Available at SSRN: http://ssrn.com/abstract=2479685
 Id. at 13, 24.
 Gilman, Utah Law Review, 75 (2014).
 Gilmar Ferreira Mendes; Inocêncio Mártires Coelho; Paulo Gustavo Gonet Branco, Curso de Direito Constitucional 208 (Saraiva, 2009) [Translation]
 See Acemoglu & Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty. 2012.
 See Costa, Alexandre and Benvindo, Juliano Zaiden, A Quem Interessa o Controle Concentrado De Constitucionalidade? - O Descompasso entre Teoria e Prática na Defesa dos Direitos Fundamentais (Who is Interested in the Centralized System of Judicial Review? - The Mismatch between Theory and Practice in the Protection of Basic Rights) (April 2014). Available at SSRN: http://ssrn.com/abstract=2509541 or http://dx.doi.org/10.2139/ssrn.2509541
 Brazil adopts a mixed system of judicial review. The diffuse system is largely inspired by the American model, while the centralized one bear some resemblance to the ones utilized by European Supreme Courts. The workload is clearly concentrated on the first system, but the second is, at least according to the mainstream literature, the most important. See what Gilmar Mendes says: “from 1988 onwards, however, it makes sense to think of a mixed system only if one is aware that the basis of this system must rest on the centralized model.”(Gilmar Mendes, Jurisdição Constitucional XII (Saraiva, 2005) [Translation] .
Sunday, December 14, 2014
An estimated 3,000 individuals from Western Europe have left their home countries to join the battlefields of the Middle East. Many who return are likely to face prison sentences and close monitoring upon their release. Yet the response is not monolithic. This week, a German court sentenced a 20 year old young man to nearly a four year term of juvenile detention to be focused on rehabilitation. Last month, a French court sentenced a 27 year old with a criminal history who was trying to return to Syria to a seven year prison term.
In contrast, Denmark offers ex-jihadists the opportunity to rejoin Danish society through counseling, mentoring, and help with readmission to school. The program, which was originally targeted at far right extremists in 2007, has been retooled to help former jihadists. Rather than try to overtly try to change the participants’ beliefs, the program offers individuals mentors who work to establish trust.
Melissa Eddy, “Germany, in a First, Convicts a Returned Jihadist,” New York Times, Dec. 5, 2014.
Andrew Higgins, “For Jihadists, Denmark Tries Rehabilitation,” New York Times, Dec. 13, 2014.
Christopher Moore, “Frenchmen Sentenced to Seven Years for Joining Jihad in Syria,” France24, Nov. 13, 2014.
Thursday, December 11, 2014
Call for Nominations
Richard M. Buxbaum Prize for Teaching in Comparative Law
The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) invites nominations, including self-nominations, for the first annual Richard M. Buxbaum Prize for Teaching in Comparative Law. The prize is intended to promote, support and celebrate excellence in teaching by younger scholars.
The YCC created the Buxbaum Prize in the summer of 2014 in honor of Professor Richard M. Buxbaum, the 2014 recipient of the ASCL Lifetime Achievement Award. Professor Buxbaum is the Jackson H. Ralston Professor of International Law (emeritus) at the University of California, Berkeley.
The Buxbaum Prize for Teaching in Comparative Law is awarded independently by the YCC in recognition of teaching excellence in any subject of comparative public or private law by an untenured scholar in a tenure-track position at an ASCL Member Institution.
The Buxbaum Prize will be awarded at the Fourth Annual YCC Global Conference, scheduled this year for April 16-17, 2015, at Florida State University College of Law in Tallahassee, Florida.
Nominations will be accepted by tenured professors currently teaching at an ASCL Member Institution. Self-nominations by untenured professors will also be accepted. Nominations should be emailed by 12:00pm EST on January 19, 2015, to email@example.com.
Nominations should include the nominee’s name, institutional affiliation, contact information, field of scholarly interest in comparative law, and relevant course syllabi. Nominations should also include a statement attesting to the nominee’s teaching excellence.
Nominations may also include teaching evaluations.
Questions may be directed to Ioanna Tourkochoriti, YCC Director of Advisory Groups, at firstname.lastname@example.org.
Sunday, December 7, 2014
With the ranks of ISIS apparently swelling with fighters from Europe and elsewhere, it is unsurprising that law enforcement authorities in the U.S., Canada, and Europe are proactively attempting to identify would-be recruits. A key question with proactive law enforcement is at what point does mere thinking qualify as something beyond mere intent. Last week, Canadian authorities filed two terrorism related charges against a 15 year old boy, who apparently was trying to raise money to travel to the Middle East.
Apparently, the boy became radicalized after viewing jihadist videos. At one point had attempted to contact the Martin Couture-Rouleau –the individual who recently attacked two Canadian soldiers, killing one of the officers. In addition, the youth robbed a grocer at knifepoint, apparently to raise funds to travel abroad. Facing a possible sentence of life in prison, the boy has been charged with two crimes: committing a robbery for the benefit of a terrorist group and planning to leave Canada for the purpose of committing a terrorist act. Although the boy had pleaded guilty to the robbery charge in October, authorities filed the new charges after learning of the boy’s travel plans. According to the Royal Canadian Mounted Police (RCMP), the boy told authorities that Canada was filled with infidels and that he was trying to obtain money to travel to a country that uses Islamic law.
Canada’s Parliament added the charge of planning to leave Canada just last year to as part of the Combating Terrorism Act (2013). The Act created four new crimes that are intended to prevent individuals from leaving Canada for terrorism-related purposes. Although the individual who has just been arrested has been accused of committing a robbery, the Act also allows law enforcement to arrest and charge individuals if they are merely at the planning stage of terrorist activity before they leave Canada to undertake that activity.
Given the research on adolescent brain development which indicates that teenagers are less likely to consider the consequences of their actions, one wonders exactly how close the teenager was to leaving Canada. It also suggests that perhaps we should require more evidence of an actual actus reus before charging juveniles with planning related crimes such as leaving the country to commit an act of terrorism. Although the fact that the boy plead guilty to a robbery already in this case shows that this prosecution is not based on a mere thought-crime, one might expect that as law enforcement attempts to become more proactive, there may be pressure on law enforcement officers to intervene earlier in the planning process.
“Canadian Teen ‘Sought to Engage in Terrorist Activity,” BBC News Online, December 4, 2014.
QMI Agency, RCMP charge 15-year-old with terrorism-related offences, Ottawa Sun, December 4, 2014.
Paul Vieira, “Canada Charges 15-Year-Old With Two Terror Related Offenses,” Wall Street Journal, December 4, 2014.
2014 Public Report on the Terrorist Threat to Canada
Thursday, December 4, 2014
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.
Monday, December 1, 2014
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 email@example.com 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.
Saturday, November 29, 2014
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.
Tuesday, November 25, 2014
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.
Tuesday, November 18, 2014
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.
Sunday, November 16, 2014
Monday, November 10, 2014
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.
Thursday, November 6, 2014
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.)
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.
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.
Saturday, November 1, 2014
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
Tuesday, October 28, 2014
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.
Sunday, October 26, 2014
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.
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 firstname.lastname@example.org. Review of applications will begin immediately and will continue until the position is filled.
Thursday, October 23, 2014
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.
Sunday, October 19, 2014
I've been on hiatus for two weeks after travelling to China to deliver four presentations on subjects ranging from the status of the death penalty in the U.S. to a comparative review of new anti-corruption legislation around the world. I had a great time in China and wish to thank my hosts at the Shanghai University of Political Science and Law, the Shandong University of Political Science and Law, as well as the China University of Political Science and Law. The discussions that I had with students and faculty at all three universities were productive and engaging.
From the standpoint of both the criminal law and economic law, the Chinese legal system is continuing to evolve. It was not until 1997, that the Chinese Code began to depart from creating the definitions of crime by analogy and instead began to rely on legally prescribed principles. Since 1997, the Code of Criminal Law has been amended eight times with the ninth amendment expected next year. The content and number of economic crimes has changed with each Amendment to the Code-in part reflecting economic reforms. One change that is underway with respect to economic crime is the emergence of more crimes of omission based on a duty owed by one party to another.
One key issue that the Chinese legal academy is grappling with is the issue of what types of unlawful economic level should be punished by the criminal code versus administrative regulations. This is particularly true with respect to environmental crimes where late last year China's ministries of public security and environmental protection announced that they would be cooperating more closely in the investigation and prosecution of environment-related crimes.
Tuesday, October 14, 2014
Two recent events overlap to raise a question about rendering of verdicts after trial. In Warger v. Schauers, the US Supreme Court recently heard oral argument about whether a civil plaintiff can move for a new trial based on information about something that occurred during jury deliberations that ended in a defendant’s verdict. The case raises the seemingly well settled question about whether the courts and the public and the parties can have access to information about what happens in a jury room during deliberations. The long standing and unwavering current answer is a resounding no. Based on press and opinion, the Supreme Court does not seem likely to change that.
In Warger, the plaintiff sought to rely on information that the forewoman had stated during deliberations that her daughter had been at fault in an auto accident and that her life would have been ruined if she had been sued. Apparently, the forewoman had made no mention of this during voir dire. The plaintiff relied on this information to seek a new trial, arguing that the forewoman had been dishonest and should not have been seated on the jury. The lower courts refused to rely on this information because it violates the total privacy given to jury deliberations in the United States (absent a third-party influence into the jury room). Although the plaintiff sought to escape this well-established rule by arguing that his claim related to jury composition not deliberations (she shouldn't and wouldn't have been seated), observers of the oral argument did not think the Court would accept that distinction. At a time when the public has so much more information than any given jury, and when jury service has sometimes been viewed as an opportunity for fame, our continued refusal to examine what goes on in the jury room jeopardizes the public's trust in the reliability of the jury process, even though it protects an ideal version of the democratic jury.
In contrast to this total prohibition against scrutiny of deliberations we have the reading, on worldwide television, of the verdict in the Oscar Pistorius trial. Not only was the verdict rendered in public; according to South African law the judge who rendered it (with the help of two appointed assessors) gave all of her reasons for the verdict, including resolution of credibility questions, the drawing or rejection of inferences, and the like.
So these two cases are a study in contrasts. Is it necessary to close our eyes to improprieties in the jury room – if indeed they occur – in order to secure the right to a traditional lay jury? Do we have to give up the judgment of lay jurors to learn the reasons why a jury resolves a case the way it does? Food for thought.
Tuesday, October 7, 2014
We are sorry to report the sudden death of Pofessor H. Patrick Glenn of McGill, President of the American Society of Comparative Law. Professor McGill was an expert and major figure in private international law. We extend our condolences to his survivors and note that he will be sorely missed.
For further information, we have posted his obituary from the McGill Website: