Category: Law and Inequality

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Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India

Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.

PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA – Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who  were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).

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INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book

My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).

Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.

Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.

Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.

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Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”

moneyshirt.jpgIt’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.

At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:

Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout

Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.

Photo Credit: Rob Lee/Flickr, Money Shirt.

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The First Amendment Goes to the Prom

In spring a young woman’s fancy turns to love.  Take Constance McMillen for example.  A senior at Itawamba Agricultural High School in north Mississippi, McMillen has been out as a lesbian since the eighth grade. Back in February the high school — for some reason — issued a policy directing that only opposite sex couples could attend the upcoming prom in early April.  McMillen asked for an exception so she could bring her girlfriend, and she also asked permission to wear a tuxedo. The high school and the county school board denied her requests.  McMillen and the girlfriend could attend, but only if each came with a boy as her date, if the girls wore dresses (not a tux, not slacks and a nice top), and if they did not slow dance with each other, which would “push people’s buttons”.  After McMillen got the Mississippi ACLU involved, the school board cancelled the prom altogether, citing  potential “distractions to the educational process”.   The school board expressed the “hope that private citizens [would] organize an event for the juniors and seniors.”

McMillen promptly sued in federal court, seeking an injunction to compel the prom to go forward.  In a decision issued March 23, just one day after the hearing, Senior U.S. District Judge  Glen Davidson (no liberal he — a Reagan appointee) denied her request.    McMillen v. Itawamba County School Dist., 2010 U.S. Dist. LEXIS 27589 (N.D. Miss. 2010).  The opinion contains some interesting holdings.  The judge found that McMillen had a First Amendment interest in attending the  prom with a same-sex partner, and also a First Amendment interest in wearing cross-gender formal attire to the prom.   More on those notions in a moment.  Holding number three — he denied the preliminary injunction, based on his assessment of the familiar fourth factor for injunctive relief, consideration of the public interest. There was no need to reinject the school board into the prom process via court order or to get the court involved in planning and overseeing a prom, he found, because the parents of the high school students represented to him that they were now planning a  “private” prom which all the students in the high school would be invited to attend.  Judge  Davidson’s opinion used the scare quotes  around “private” and the italics for all.  Perhaps he suspected something was up.

With good reason, it turns out.  There were some additional shenanigans.  McMillen couldn’t find out where to buy a ticket to the “private” prom, then when she did, was told she had missed the cutoff time for purchase by a few minutes.   Then the parents announced that the prom they had told the judge about was cancelled altogether.   Eventually, though, McMillen thought that it was finally settled and on April 2 off she went in her tuxedo to her hard-won prom.   Only to find it was a decoy.   McMillen and her date (not the girlfriend, BTW — the girlfriend’s parents wouldn’t let her attend because of the media attention) were just about the only ones there — five other students, two of them with learning disabilities, and the chaperones, who were the high school principal and other school officials.  All the other students had gone to another,  “private”  prom being held at the same time in a location concealed from McMillen.  Some of the high school students later bragged on Facebook about the whole deception, further mocking McMillen.

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Sun on Katrina’s Lessons for Haiti

This is a guest post from Professor Lisa Sun at BYU Law School.  She is the author, along with Daniel Farber, Jim Chen, and Robert Verchick, of Disaster Law and Policy, from Wolters Kluwer.  Lisa writes:

News reports emerging from the devastation of the 7.0 earthquake that struck Haiti last Tuesday suggest that street violence is growing and that local and international officials fear widespread looting, rioting, and the breakdown of civil order.  For example, the U.K. Telegraph reported on Saturday that  “[a]s anger and fears of violence grew amid desperate shortages of food, water, and medical supplies, bands of machete-wielding earthquake survivor [stet] yesterday roamed through the ruins of Port-au-Prince.”  The paper likewise reported incidents of violence against rescuers.

These media reports evoke similar reporting about New Orleans in the aftermath of Hurricane Katrina in fall 2005.   Feverish reports of widespread looting and violence painted a picture of a city sinking, not only into the sea, but also into the depths of anarchy.  The New Orleans Police Chief told Oprah Winfrey that “little babies [were] getting raped” in the Superdome.  Numerous media outlets reported that Katrina survivors were firing on their would-be rescuers.   Widespread looting was reported with headlines such as “The looters, They’re Like Cockroaches.” Read More

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An Egalitarian Argument for Punishing Poor People More Harshly

Consider the following argument: The same punishment for different people is not in fact the same. Thinking of a criminal fine is the easiest example. A $1000 fine levied on an offender who is a millionaire is simply not as serious of a sanction as a $1000 fine leveled against a poor criminal. The millionaire can pay the fine without noticing it, while the poor criminal may be subjected to considerable economic hardship. The result is that the $1000 fine will not have much deterrent effect against the millionaire. To get his attention we require a much harsher punishment. So far so good. Read More

Will Obama Join the New Democrat Coalition on Financial Regulation?

A series of interesting journalistic takes on financial regulation have suggested that, after the hyperpartisan brawl over health care reform, financial reform may be a more bipartisan affair. For example, according to Alison Vekshin and Dawn Kopecki, it appears that House Democratic leaders have put a large contingent of moderates on the House Financial Services Committee:

In the House of Representatives, where the debate on regulatory reform started, the New Democrat Coalition has 68 fiscally conservative, pro-business members who fill 15 of the party’s 42 seats on the House Financial Services Committee. And with just a 38-member voting majority over Republicans (who often vote as a block in the House), Frank and Pelosi can’t push legislation through without the New Democrats’ support. . . .

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“Please Tase Me, Boss”

Recently Arianna Huffington and Rob Johnson proposed that individuals angered by bank bailouts move their money from “too-big-to-fail banks” to community banks. As Zephyr Teachout and Paul Volcker have noted, economic power can inexorably lead to outsized political influence. Huffington and Johnson worry that “The government policy of protecting the Too Big and Politically Connected to Fail is badly hurting the small banks, which are having a much harder time competing in the financial marketplace. As a result, a system which was already dangerously concentrated at the top has only become more so.” As I work my way through Karen Ho’s excellent ethnography Liquidated, I thought I might mention a few stories about a noted hedge funder that give a human face to Huffington/Johnson’s worries about Wall Street.*

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Inequality & Media Decline

There have recently been a number of conferences on the future of journalism. I think a whole panel could focus on the following factoid, observed by Michael Massing:

Katie Couric’s annual salary is more than the entire annual budgets of NPR’s Morning Edition and All Things Considered combined. Couric’s salary comes to an estimated $15 million a year; NPR spends $6 million a year on its morning show and $5 million on its afternoon one. NPR has seventeen foreign bureaus (which costs it another $9.4 million a year); CBS has twelve. Few figures, I think, better capture the absurd financial structure of the network news.

In a winner takes all economy, rewards to those at the top often have little to do with the value of what they create. That’s one reason Massing thinks it’s important for some of the big winners of the digital economy to help those they displace.