Monday, February 23, 2015
Why is one country’s law different from another’s? In answering this question comparative lawyers—like political scientists, historians, or international chefs--turn inevitably to the concept of culture. But culture is a notoriously squishy term, and getting a handle on it is an inherently elusive task.
The dictionary defines culture as “the integrated pattern of human knowledge, belief, and behavior that depends upon the capacity for transmitting knowledge to succeeding generations.” An alternate definition is “the customary beliefs, social forms, and material traits of a racial, religious or social group,” while a third is “the set of shared attitudes, values, goals, and practices that characterizes an institution or organization.” The first thing that one notices is the tension between attitudes and institutions. While laymen tend to think in terms of attitudes and behaviors—Germans are efficient, Italians are emotional, the British keep a stiff upper lip—professional anthropologists often emphasize institutions, which are both shaped by attitudes and (in turn) pass them on to future generations. In my research on comparative taxation, I have found institutions, like the tax legislative process and the role of nonpartisan tax experts, as or more important than popular attitudes in determining tax outcomes.
Law and anthropology is less popular than (say) law and economics, but it may well be more persuasive. Most frequently, it has been applied to areas of law, like marriage, divorce, property succession, and (perhaps) criminal law, in which the differences between cultures are most obvious. But there is a large and growing body of “L and A” work in corporate law and other nontraditional areas. The work of Annelise Riles, whose numerous publications include Documents: Artifacts of Modern Knowledge, and Collateral Knowledge: Legal Reasoning in the Global Financial Markets, is especially influential in this area. Other important names include Douglas Holmes, who has written on the anthropology of finance, and Hiro Miyazaki, who has done field work on subjects ranging from Fijian land owners to derivative traders at a Japanese securities firm. That the latter two are anthropology rather than law professors suggests the wide-ranging nature of the subject.
Like any interdisciplinary subject, law and anthropology is tough sledding, requiring a knowledge of two distinct subjects and (for comparativists) two or more legal systems. There is an inevitable tension between theory on the one hand and “thick description,” a la Clifford Geertz, on the other. Like comparative law generally, it may be a better subject to pursue after tenure than before it. But the rewards are incalculable.
Friday, February 20, 2015
We take pleasure in sharing a link to the annual European Law Faculties Association Conference in Istanbul, Turkey, April 16-19, 2015. For additional information, please click on the link below.
Thursday, February 19, 2015
American English has an expression, less in vogue now than in the recent past, but still in current use: "get real." It's most often used to urge someone to stop fooling themselves about something; also sometimes used to urge someone to stop trying to push the limits of credulity with someone else. In basic Property I teach a case, Middler v. Ford Motor Company, that is explicitly about fakes getting real. This case of unauthorized commercial impersonation tests the possibility of a person asserting property rights -- in this case, singer Bette Middler and the timber of her voice -- in her own "realness." Piracy, a familiar bête noire of intellectual property doctrine and international trade policy, depends on the distinction between real and fake in its attempts to trade in them.
The problem of imposters is interesting on broader grounds. In the American academy these days, most of us are social constructivists. That makes fakes, when it comes to people's practices, a puzzle. If we consider social life and social facts "constructed," or "performed," then there is no such thing as an a priori authentic self; there are merely dramatic realizations of idealized personas, performances that may or may not be accepted by audiences under different conditions. Ok. So no a priori real, no a priori fake. But what about the imposter, the one whose present performance is parasitic on an ideal whose definitional parameters the performer himself does not consider himself to have met? This is a problem raised by some of the practices Jacqueline Ross studies, those of police informants, that I find just fascinating. How much crime may (or must) an informant engage in to create trust with criminals before being considered a criminal himself? How much performance under those circumstances makes the informant herself liable for criminal prosecution?
In Ukraine last winter, during a period of street protests on the central square (the Maidan) against an oligarchic president favored by the incumbent Russian government, protesters who felt their story was not being accurately reported (or suppressed altogether) started their own websites and information distribution systems to get the word out. "Hromadske tv" ["Citizen tv], an internet broadcast channel. Babylon 13, an indy film crew producing short documentary films on citizen resistance, aired via the internet. EuroMaidan News, a print reporting service distributed mostly via its facebook page.
In short order, demonstrators and others noticed parallel press reports and then, on occasion, whole organizations presenting obfuscating or just plain wrong versions of "news" events. On many occasions, reports hostile to the protesters or their cause seemed to repeat similar tropes -- false statements such as the Maidan protesters were all fascists or Nazis. Some of the false reporting seemed clearly coordinated. One late midde-aged woman, for example, interviewed in the southern city of Odessa was identified as a native Russian speaker of Odessa scared of Ukrainian fascists. The very same person later showed up in other footage, interviewed as a "local native" hundreds of miles away -- in Kharkiv, then in cities in southeastern Ukraine -- each time identified as a different local resident, each time under a different name, as a different persona, excoriating protests on different grounds: here a Russian speaker claiming (falsely) protesters were imposing Ukrainian language, there a local pensioner scared by young protester hooligans, elsewhere a nostalgio-loyalist rejoicing in Russian moves on Crimea. Efforts like this one, conducting interviews in different places and placing them as different stories in media newsfeeds, takes the practice known in the U.S. as "astro-turfing" -- hierarchical national organizations like political parties installing fake local "grassroots" -- to a new level. The specious reporting assumed giant proportions in the regional mediaspace. Many associated it with the government of Russia. Some Maidan activists set up a channel to blow the whistle on fake news reports that they call Stopfake. (You can see their website here, at www.stopfake.org/en .) I admire their energy. For the literal-minded, as many of us in law are, combatting an infinite regress of funhouse mirror reflections seems exhausting.
Another channel of fake reporting or intentional shaping of public opinion has come through internet trolls. The Atlantic and others have reported on an army of trolls on Russian government payroll whose job it is to surf the internet and social media and post comments on threads to cast doubt or sew confusion. The Russian government is not the only party in the region deploying such tactics. Stopfake just published in interview with a troll formerly employed by one of the Ukrainian oligarchs to lurk and post. Again, this goes beyond "spin," ham-handed attempts of professional p.r. representatives, who publicly self-identify as such, to characterize events in a certain way favorable to the goals of one political party or another. These are people posing as innocent bystanders or disinterested parties whose job it is to, under that guise, shape discourse and worldviews. They are not spin-doctors. They are imposters: they are pretending publicly to be something they are not and their performance is parasitic on the "real." (It's a fascinating symptom of the infinite regress problem that Stopfake includes an explanatory label on the section of its website that posted the troll interview: "News in the section 'Context' are not fakes. We publish them in order to keep you informed about events concerning the information war between Ukraine and Russia." The Munich Security Conference that opened today (February 6) takes as its topic "Hybrid War," including the "information war" in which authentic and fake play such starring roles.
A facebook a page calling itself "Zero Anthropology" shows up in my stream in defiance of most facebook algorithms. (For example, I have never "liked" a post, nor shared a post, of theirs, yet it bumps family members out of priority in my feed.) That leads me to believe that Zero Anthropology may be paying facebook for placement in my feed, although it is not labeled a "sponsored post" as other commercial posts typically are. I am not bothered much about any of this. It's easy to ignore. I am awfully curious, though. Every post by Zero Anthropology that I've seen is an "inside ball" scathing comment on U.S. foreign policy (or, on rare occasion, British and its colonial legacy). It reads, in short, like a screed composed by writers with an agenda of discrediting the U.S. government and its allies. One wonders if their on a payroll. I have yet to see a single note of anthropological analysis in Zero Anthropology. In fact, the name "Zero Anthropology" may be the most authentic thing about it.
Another problem of "the real" that has recently resurfaced in Ukraine are reports of infiltrators: that under the former Yanukovych regime, Russian government personnel purposefully infiltrated the ranks of Ukrainian executive- and legislative- branch structures. These personnel, installed during the presidency of a Russian government ally or client, found themselves well if precariously positioned after the rapid turn events last February when Yanukovych abdicated and the public voted in a new government less amenable to working closely with Russia in the governance of Ukraine. News from Ukraine today reports the arrest of two military officers on the grounds of their being Russian infiltrators feeding classified military information to opposing combatants whom Ukrainian government troops are fighting in eastern Ukraine. (Of course, the news organization reporting the arrests is "Ukraine Today," an entity set up by the Ukrainian government to counter the aggressive media efforts of the Russian government through its news organization, Russia Today.)
Sometimes the stakes are puzzlingly, or laughably, low: if Zero Anthropology , for example, indeed proves a fake, I would be curious about (or concerned for) whatever entity is spending money in attempt to influence the facebook community of English-capable anthropologists. As one, I freely admit such an effort hardly targets the corridors of great political power or wealth. At other times, for example infiltration of criminal groupings by police informants, the risks and possible rewards are greater. Infiltrating officer ranks during a war raises the stakes yet higher.
 See Erving Goffman, Performances, in The Performance of Self in Everyday Life.
 See, e.g., Jacqueline E. Ross, The Elusive Line between Preventive and Repressive Undercover Investigations in Germany: An Empirical Study, in Police and the Liberal State 136-156 (Markus Dubber ed., 2008); Jacqueline E. Ross, The Place of Covert Policing in Democratic Societies: A Comparative Study of the United States and Germany, 55 American Journal of Comparative Law 493 (2007).
 Daisy Sindelair, "The Kremlin's Troll Army," The Atlantic (August 12, 2014).
 See, e.g., Adam Taylor, "The Troll War for Ukraine: Tweets and Blogs to Push the Message," The Washington Post (Mar. 6, 2014) (reporting on Russian government trolls and U.S. government use of social media to shape opinions in the region).
 "How to Identify and Spot Internet Trolls: An Interview with a former Akmetov's bot" (January 31, 2015) available at http://www.stopfake.org/en/how-to-identify-and-recognize-internet-trolls-an-interview-with-a-former-akhmetov-s-bot/.
 Judy Dempsey, "Europe's Losing Information War," Judy Dempsey's Strategic Europe (Feb. 6, 2015) available at http://carnegieeurope.eu/strategiceurope/?fa=58998 .
 "Ukraine Military Official Arrested: Chornobai Accused of Giving Information to Milittants," Ukraine Today (Feb. 5, 2015) available at
Thursday, February 12, 2015
A fascinating judicial dialogue recently took place between the European Court of Human Rights (ECHR) and the U K Supreme Court concerning the admissibility of hearsay evidence. A look at that discussion illuminates how the ECHR handles its role with respect to its constituent countries. For us in the United States, it also shows how the United States Supreme Court’s approach to hearsay stands uniquely against that of other countries.
The exchange between the ECHR and the U K Supreme Court involves two cases: Al-Khawaja and Tahery v . United Kingdom1 and R. v. Horcastle & Ors..2 In the first, Al-Khawaja and Tahery v. United Kingdom, the ECHR held there were two requirements before hearsay evidence could be admitted: (1) there had to be good reason for non-attendance of the witness (so-called unavailability) and (2) to put it briefly, there had to be sufficient safeguards against unreliability. Significantly, however, the Court held that where hearsay evidence is the “sole or decisive” evidence supporting a conviction, its admission constitutes a violation of the right to a fair trial under Article 6 of the European Convention of Human Rights,3 regardless of the presence or efficacy of safeguards. That case was sent back to the United Kingdom’s domestic courts; domestic courts are then required to take ECHR judgments “into account.”
Meanwhile, the U K Supreme Court decided R. v. Horncastle & Ors.. While the Court noted that the requirement to “take into account” the Strasbourg decisions normally results in domestic courts applying the principles laid out by the ECHR, the Supreme Court nevertheless held that there were rare occasions where the Supreme Court could refuse to follow the ECHR and “give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court.”4 It did so in Horncastle, and concluded that the hearsay was not the sole or decisive evidence in the case. And even if it had been, the Court held that “there were sufficient counterbalancing factors to compensate for any difficulties caused to the defense….”
The ECHR then reached the same decision in Horncastle. As a result, the ECHR’s original holding, that where hearsay is the sole or decisive evidence supporting a conviction that conviction violates Article 6, was modified so that the “sole or decisive rule” should not be applied inflexibly.
It is so interesting to see how the Strasbourg Court, which reviews cases from different countries and different systems, must and does, in fact, take many different national interests into account. This is really a case in which the United Kingdom’s Courts took the opportunity to explain the particular safeguards against hearsay in the UK system to the Strasbourg Court.
Incidentally, these decisions also show how the United States Supreme Court’s Sixth Amendment approach to the admission of hearsay in Crawford v. Washington5 is so obviously based on our Constitutional text. Anyone reading Justice Scalia’s decision knows that. However, the contrast to the balancing and fairness that is currently the law in Europe – and, incidentally, was the law in the United States before Crawford – is made absolutely crystal clear.
- Al-Khawaja and Tahery v. United Kingdom,  ECHR 2127, http://www.bailii.org/eu/cases/ECHR/2011/2127.html.
- R. v. Horncastle & Ors.,  UKSC 14, http://www.bailii.org/uk/cases/UKSC/2009/14.html.
- Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art. 6, http://conventions.coe.int/treaty/en/treaties/html/005.htm.
- Horncastle, at ¶ 11.
- Crawford v. Washington, 541 U.S. 36 (2004), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-9410#opinion1.
Sunday, February 8, 2015
For the past several months I have been meeting with consultants from the IUPUI Center for Teaching and Learning and to design an online course in comparative cybercrime. Though I have completed two courses in the Quality Matters training (which sets standards for online courses), I have been amazed at how difficult it is to design a course with specific learning objectives in mind and to develop regular assessments tied to those objectives.
Though an instructor can couple recorded lectures with assigned reading, it is difficult to know (guess) just how motivated or self-directed I can expect students to be. Is it too much to require them to contrast and compare two pieces of legislation from different countries without a professor leaning over their shoulder demanding that they delve deeper into the comparison?
I would be curious to know if there are other comparativists out there who have experience teaching an online course and what types of assessments and assignments worked particularly well (or not so well).
One of the frustrations of legal academics is the narrow definition of fields. Even international and comparative law, which one would think closely related, are sometimes divided and even alienated from one another. Legal history, which touches closely on both, is entirely separate and further divided between countries and periods.
A rare effort to combat this narrowness is the "comparative legal history" movement. The most visible example is the European Society for Comparative Legal History (ESCLH), which was founded a couple of years back and has held a series of conferences, usually in attractive European locations. (The last was in Macerata, Italy, and the next (2016) is in Gdansk.)
As its name suggests, the ESCLH emphasizes interdisciplinary work, although thus far the historical aspect has tended to trump the comparison. At a recent conference, most of the papers were on national subjects (treatment of women in Lithuania, legal theory in Catalonia) rather than cross-border topics. One can argue that this in itself is comparative, because the commenters are nearly always from other countries and the discussion inevitably raises comparative issues. As the saying goes, one learns to crawl before learning to walk: more conferences will probably mean more comparison, and more comparison will mean more and better-attended conferences.
It's interesting to think about a similar movement in the US. Legal history here tends to mean "American Legal History:" foreign countries are just too far away and their issues aren't always well-known. But, as in Europe, the comparisons are implicit even if they aren't always named. The work of Ariela Gross, for example, suggests that American racism has much in common, not all of it pretty, with the foreign variety. Some have even suggested—heaven forfend-- that our national security state has historical parallels in Central and Eastern Europe. Perhaps the ESCLH should hold their next meeting in Chicago. There are certainly enough restaurants.
Monday, February 2, 2015
Do tax law and policy differ in different countries, or are they pretty much the same everywhere? That question is attracting increased attention from tax and comparative law scholars.
Because tax is quantitative in nature, and because it deals with numerous cross-border transactions, it has historically been considered a strong candidate for globalization. Works on the subject have historically emphasized the common questions faced by national tax systems—the definition of income, the treatment of capital expenditures, the choice between income, expenditure, and VAT taxes—as well as the common policy goals (fairness, efficiency, simplicity) said to underlie these questions. To put it in comparative law terms, the presumption of similarity has been especially strong in the tax field, together with a strong sense that national tax systems were converging around common themes.
In recent years these assumptions, together with the overall state of comparative tax discourse, have attracted increasing skepticism. Prof. Omri Marian’s article, “The Discursive Failure in Comparative Tax Law,” argues that comparative tax is largely undeveloped and has “failed to produce even the faintest form of paradigmatic discourse.” Marian is particularly skeptical about the application of a functionalist approach to comparative tax issues.
Carlo Garbarino’s piece, “An Evolutionary Approach to Comparative Taxation,” is somewhat less skeptical, recognizing common themes but also significant differences between national tax systems. Garbarino argues for a “functional evolutionary” approach that emphasizes institutional analysis, tax transplants, and efforts to identify a “common core” of tax principles that is consistent despite national differences.
My own current project, with the rather immodest title of “Tax and Culture,” attempts to identify underlying differences that might account for the divergence as well as the supposed convergence of tax systems. These include attitudinal but also institutional differences—what I label “tax anthropology” and “tax sociology”—that are stubbornly resistant to standardization. I am especially interested in what might be called historical quirks, like American antitax sentiment or the Indian rule against taxation of agricultural income, which appear irrational to outsiders but continue to play an important role in national tax systems. (I hinted at these issues in a piece a couple of years ago; now I'm trying to expand them into a full-length book.)
I should also mention the work of more comprehensive scholars like Alison Christians, Daniel Shaviro, and Reuven Avi-Yonah who—while writing about a wide variety of issues—inevitably touch on the question of convergence or divergence and the persistence of distinctive tax cultures in the international tax system.
Like all comparative law problems, it may be that the tax issue is irresoluble: that there will always be some mixed of similarity and difference that no theory can fully explain. Still, for a field historically at the margins of comparative law discourse—and one whose theoretical side remains notoriously undeveloped—it is a refreshing change.
Sunday, February 1, 2015
This guest post is written by Mohamed Arafa-an Assistant Professor of Criminal Law and Criminal Justice at Alexandria University Faculty of Law (Egypt) and an Adjunct Professor of Law at Indiana University Robert H. McKinney School of Law at Indianapolis (USA).
On January 7, 2015, Egypt President ‘Abdel-Fattach El-Sisi made a remarkable visit to St Mark’s Orthodox Cathedral to celebrate Christmas Day with Coptic Christians. El-Sisi was sending an obvious and robust message to the radical and extreme Islamists, particularly in light of the latest discriminatory acts toward Copts at the hands of radical Muslims. El-Sisi in his recent declaration said: “Islam must reform, its dialogue needs to change, and the Muslim community needs a revolution in understating their Islamic religion and apprehending the accurate and correct interpretations of the Islamic provisions of either the Qura’nic texts or the Prophet Mohammad’s teachings . . .” via the moderate madaress al-fiqh (schools of jurisprudential thoughts) by adopting the tools of Islamic interpretation of either analogical deduction or ijtihad (individual reasoning) before the devastating attack on Charlie Hebdo.
On the same day, a crime against humanity was perpetrated under the cover of religion - jihadist gunmen forced their way into and opened fire in the Paris headquarters of Charlie Hebdo, shooting, killing, and wounding twelve individuals (staff cartoonists, and police officers). During the attack, the radicals shouted Allah Akbar (God is great and the Prophet is avenged). Promptly, French President François Hollande described the inhumane activity as a “terrorist attack of the most extreme barbarity.” Many Muslim leaders throughout the globe condemned the barbaric incident and implored that, although Muslims may be offended by images that ridicule the Prophet Mohammad, both constitutional and international legal principles, as well as Islamic human rights law recognize freedom of speech as an essential human right. Whatever the motivation for the attacks, the gunmen ignored one of the main foundations of Islam. By resorting to violence, these fanatical killers were not revenging the Prophet, but rather demonstrating their own self-righteousness and religious illiteracy. In contrast, some online extremists praised the attacks.
 See Ahmad Al-Ghamrawi, Sisi Makes Historic Christmas Visit to St. Mark’s Cathedral, Asharq Al-Awast, Jan. 8, 2015, http://www.aawsat.net/2015/01/article55340234 (“Egyptian President ‘Abdel-Fattah El-Sisi visited the country’s main Coptic Cathedral in Cairo . . . to attend its Christmas celebrations, becoming the first Egyptian head of state to visit the cathedral to mark the occasion. Sisi made the surprise 10-minute visit to St. Mark’s Coptic Cathedral—the seat of the Coptic Orthodox Church and its Pope Tawadros II—during Christmas Eve. Mass.”).
See generally Charlie Hebdo Attack: Three Days of Terror, BBC News, Jan.14, 2015, http://www.bbc.com/news/world-europe-30708237 (last visited Jan. 20, 2015). (“France is emerging from one of its worst security crises in decades after three days of attacks by gunmen brought bloodshed to the capital Paris and its surrounding areas. It began with a massacre at the offices of satirical magazine Charlie Hebdo . . .”).
 Id. See also Defiant Charlie Hebdo Depicts Prophet Muhammad on Cover, BBC News, Jan.13, 2015, http://www.bbc.com/news/world-europe-30790409 (last retrieved Jan.20, 2015). (“French satirical magazine Charlie Hebdo show[ed] a cartoon depicting the Prophet Muhammad holding a “Je Suis Charlie” (I’m Charlie) sign. Above the cartoon are the words “All Is Forgiven.”).
 See Pamela Constable, U.S. Muslim Groups Denounce French Terror, Say Free Speech Must Be Protected, The Washington Post, Jan.14, 2015, http://www.washingtonpost.com/local/us-muslim-groups-denounce-french-terror-say-free-speech-must-be-protected-even-when-it-insults-their-religion/2015/01/14/3867cd80-9c26-11e4-96cc-e858eba91ced_story.html (last visited Jan. 20, 2015). (“The caricatures of the Prophet are offensive, but the violent assault on the satirical magazine Charlie Hebdo was a complete affront to Islamic principles and values . . .”).
 Ian Black, Charlie Hebdo Killings Condemned By Arab States—But Hailed Online By Extremists, The Guardian, Jan.7, 2015, http://www.theguardian.com/world/2015/jan/07/charlie-hebdo-killings-arab-states-jihadi-extremist-sympathisers-isis (“Supporters of ISIS praise attack . . . Arab governments and Muslim leaders and organizations across the world have condemned the deadly attack in Paris, but it was praised by jihadi sympathizers who hailed it as “revenge” against those who had “insulted” the Prophet. Saudi Arabia called it a “cowardly terrorist attack that was rejected by the true Islamic religion.” The Arab League and Egypt’s al-Azhar University–the leading theological institution in the Sunni Muslim world–also convict the incident…Iran, Jordan, Bahrain, Morocco, [and] others issued similar statements.”).
Friday, January 30, 2015
This is a time of year when we've typically taken stock and reflected, in different domains in different ways. At New Year's, many of us look back on the year that passed. In case the holidays were too packed or reflection time otherwise denied or derailed, never fear. Eastern European and a few other traditions offer a second bite at the apple. Until the Soviet revolution, there was a thirteen-day disjuncture between Julian calendar and the Gregorian calendar. Thanks to that lag, still folklorically preserved in the observance of a few prominent holidays, midwinter yields a second "New Year's Day" thirteen days after ordinary January 1 New Year's Day called Stariy Noviy God, literally "Old New Year's." [Isn't that a great name for a holiday? It encapsulates the sense of Janus in one seemingly oxymoronic but actually deeply sensical phrase.] If you missed Old New Year's, the Lunar New Year similarly offers a "second bite at the apple" of properly reflecting on the year that passed and celebrating the turn of the year to come. Professional domains offer other means of taking stock at this time of year. Student evaluations of our first semester courses invite reflection, even when evaluations are glowing. In the U.S. legal academy, the so-called "submission season" for law reviews opens around February 1 for most journals, meaning around this time many legal scholars are reviewing arguments, polishing prose, and otherwise engaged in practices of scholarly reflection. And this time in January has become a period of reflection in Ukraine, where I conduct my fieldwork; last year on January 22nd, the first citizen protesters were shot or turned up dead. In their honor, the past week has been a week of eulogies, commemorations, sober reflection, and fond or heartbroken reminiscing about those first fallen. (Certainly, not everyone in Ukraine admired their cause, but those sentiments are not aired as prominently during periods of public grief and ritual commemoration.) It is the one-year anniversary that invites outpourings.
I'm very interested in time: how people experience it, phenomenologically; how people conceptualize it; how experience of temporality inflects epistemology, including legal ideas, and practices. "Looking back on the year that passed," for example, shows how a particular conception of time (as a linear flow that "passes") reinforces how we experience time (for example, as a unit of measure of that linear flow, that there is a "year" that can pass) and has ramifications for practice (i.e., the January practice of reflecting on the year that passed or acting on resolutions for the year to come). A couple of pieces that I'm thinking through right now, including one in conflicts of laws, consider time and temporality in law. Temporality can function as a part of cognitive background that prefigures other thinking -- about, say, causality -- of basic importance in legal reasoning and outcomes.
Looking back on the year that passed in the parts of the world where I research and teach, Ukraine and St. Louis, 2014 was quite a year. A year ago, even demonstrators remodeling the centers of Kyiv and other cities in Ukraine could hardly have guessed what time would bring: mass lethal attacks on demonstrators, followed by the president's parliamentary majority crumbling, the government abdicating and the president and some of his circle fleeing the country; plain-clothes invasion in Crimea, destabilization of Southeast Ukraine with the eventual open involvement of Russian troops; an autumn and winter of hardship for refugees, IDPs, and settled populations; hunger (including reported rumors of some deaths by starvation) in the Southeast, the breadbasket of Europe; and new, renewed fighting and bombardments from compatriots or others from across borders. Viewed from a year ago, the year to come was literally unfathomable. The sense of rupture has still not been fully internalized and the crisis is still unfolding. I've given some thought in past writing to a methodology for studying legal and social change, concentrating on how people make sense for themselves, under conditions of rupture.1 Ukraine this year may be providing fresh material for revisiting that theme, as much as I wish it were boringly otherwise. That experience of rupture calls into question the exercise of taking stock.
How does experiencing time as a year that passed prefigure our epistemic engagements as comparativists? In this, I think our sister discipline must be history, whose experts traffic in time and toil in the vineyards of implicit comparison constantly. Even for those of us whose comparison is typically between geographically rather than temporally disparate settings, the past certainly seems to be much more of an intentional object in our scholarly work than the future. Perhaps neo-Deleuzian work in event-approach practices,2 uncertainty,3 and anticipation4 will evoke more anticipatory work in legal scholarship. "Taking stock" might inflect the future as well as reflect upon the past.
Certainly in scholarly work, "taking stock" in terms of reflecting and putting together an article on one's research can feel like blessed closure or like an almost- irritating a caesura, the splash of a pebble, in the ongoing flow of a project. It is only later, sometimes, that one realizes how helpful published pieces can be in a longer research project, like stepping stones in a stream.
As January turns to February and the annual submission season opens, or as you otherwise reflect on scholarly and other endeavors, we here at the blog wish you success in publication efforts and, more generally, insight into the past and productive engagement with the year ahead.
1 Monica Eppinger, On Common Sense: Lessons on Starting Over from post-Soviet Ukraine, in Studying Up, Down, and Sideways: Anthropology at Work 192 (Rachael Stryker and Roberto Gonzalez eds., 2014).
2 See, e.g., LimorSamimian-Darash, Governing Through Time: Preparing for Future Threats to Health and Security, 33 Sociology of Health and Illness (2011).
3See, e.g., Limor Samimian-Darash, Preparedness for Potential Future Biothreats: Toward an Anthropology of Uncertainty, 54 Current Anthropology (2013).
4 See, e.g., Ryan Sayre, The Un-Thought of Preparedness: Concealments of Disaster Preparedness in Tokyo's Everyday, 36 Anthropology and Humanism 215 (2011).
Thursday, January 29, 2015
We are pleased to announce the Eighth Worldwide Global Alliance for Justice Education (GAJE) Conference to be held Juy 22-28, 2015 in Eskisehir, Turkey. The general theme of the conference is “Justice Education for a Just Society.”
For further information, please click on this link:
Sunday, January 18, 2015
It is no longer a secret that, in the aftermath of 9/11, American officials ran a secret detention program in which detainees were tortured abroad. The extraordinary rendition program aimed to outsource the interrogation and detention of suspected terrorists. Despite the assurances from then Secretary of State Condoleezza Rice that “where appropriate, the United States seeks assurances that transferred persons will not be tortured,” it is now clear that those assurances held little weight. However, the corrosive impact of that policy was not merely limited to the individuals transferred to the custody of other states.
In yesterday’s New York Times, reporter Aida Alami detailed how Moroccan authorities used a CIA black site detention facility in that country to torture and terrorize the regime’s political opponents. This report comes in the wake of the Senate’s Torture Report which concluded that America’s resort to torture in the aftermath of 9/11 failed to produce actionable intelligence that saved American lives. Unfortunately, the pain and humiliation inflicted on the individuals that the U.S. tortured is not the only cost of that misguided policy. Indeed, it appears that America’s endorsement of torture and the creation of CIA detention centers on foreign soil furthered an (un)intended side effect-the use of torture to silence political dissent.
Although there is some evidence to suggest that CIA officers in at least one country objected to the host country’s use of torture on political dissidents. However, as this excerpt below from the Senate Report suggests, many of the American ‘debriefers’ who staffed these sites were mediocre, incompetent, and inexperienced and hardly had the standing and skills to discourage host countries from limited the use of “enhanced interrogation techniques” to actual terrorists. As the report cites:
With respect to the personnel at DETENTION SITE BLACK, the chief of Base wrote:
"I am concerned at what appears to be a lack of resolve at Headquarters to
deploy to the field the brightest and most qualified officers for service at [the detention site]. Over the course of the last year the quality of personnel(debriefers and [security protective officers]) has declined significantly. With regard to debriefers, most are mediocre, a handfull [sic] are exceptional and more than a few are basically incompetent. From what we can determine there is no established methodology as to the selection of debriefers. Rather than look for their best, managers seem to be selecting either problem, underperforming officers, new, totally inexperienced officers or whomever seems to be willing and able to deploy at any given time. We see no evidence that thought is being given to deploying an 'A-Team.' The result, quite naturally, is the production of mediocre or, I dare say, useless intelligence ....
We have seen a similar deterioration in the quality of the security personnel deployed to the site . ... If this program truly does represent one of the agency's most secret activities then it defies logic why inexperienced, marginal,underperforming and/or officers with potentially significant
[counterintelligence] problems are permitted to deploy to this site. It is also important that we immediately inact [sic] some form of rigorous training
program." [Senate Report p. 173]
Aida Alami, “Morocco Crushed Dissent Using a U.S. Interrogation Site, Rights Advocates Say,” New York Times, January 17, 2015.
“Globalizing Torture: CIA Secret Detention and Extraordinary Rendition,” Open Society Justice Initiative, 2013. Available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf.
U.S. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Dec. 13, 2013.
Sunday, January 11, 2015
Last week, a handful of radicalized extremists plunged parts of the City of Light into a paramilitary zone. The twin attacks on Charlie Hebdo and a kosher grocery store led to the deaths of seventeen innocent individuals. Given that the extremists had at one time been on the radar of French intelligence, it is tempting to find fault with those authorities. However, given that it may be impossible to track every extremist who returns to France from the Middle East, France and indeed the western world faces a much difficult problem. Can the citizenry live with the limits of the state's power to protect its populace or will the call to "do something" in the long run prove to be effective only at deepening religious divisions and anti-immigrant rhetoric?
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.