I am here in Washington, D.C., at the XVIIIth International Congress of Comparative Law.
Judge Rosemary Barkett (right), U.S. Court of Appeals for the Eleventh Circuit (for whom I had the privilege of clerking), began by remarking that to some extent comparing laws has some role in all jurisdictions. She presented a historical perspective from the United States to demonstrate that the practice of considering foreign sources is rooted in the legal history and tradition of the United States, citing to the Declaration of Independence, the U.S. Constitution, and the Federalist papers, as well as to numerous opinions from the U.S. Supreme Court. One of Judge Barkett's most important points was that, as international and comparative scholars, we need to address the definitional problems in comparative law. For example, many jurisdictions espouse allegiance to the rule of law, but what exactly does rule of law entail?
Justice Sabino Cassese (left), of the Constitutional Court of Italy, next provided three distinct examples of courts looking beyond their own nation's borders for insights. He emphasized that recourse to comparison by high courts is widespread, and that increasingly supreme courts are acting as comparatists. Justice Cassese emphasized two tasks for comparative lawyers and scholars: one, to examine and evaluate how judges and courts use foreign law; and two, to develop methods and procedures for comparison.
Reprinted in Germany and Its Basic Law: Past, Present and Future, A German-American Symposium 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993).
Lamm also cited to the "Obama-Clinton Doctrine" speech that State Department Legal Adviser Harold Hongju Koh delivered to the American Society of International Law annual meeting. (additional coverage) The speech is definitely worth a read.
Judge Diego García Sayán (right), President of the Inter-American Court of Human Rights, spoke of the role of his regional court with respect to national courts in the Americas. He explained that most Latin American national courts openly and explicitly use judgments of the Inter-American court in their decisions, and that the Inter-American court also has used local and national criteria used by national courts. Judge García Sayán also remarked on the use of international law by the Inter-American court, particularly noting the influence of the jurisprudence of the European Court of Human Rights. While this influence used to be primarily a one-way street, recently the European Court of Human Rights has also looked to the jurisprudence of the Inter-American court for persuasive value.
Judge Bruno Simma (left) followed by describing his experience on the International Court of Justice and his use of comparative law in an early opinion on the Oil Platforms dispute between Iran and the United States. Judge Simma warned both of the dangers that could befall a comparatist and of comparative law accidents.
Even if DNA evidence proves crucial to cracking to case of a serial killer, the use of such evidence is outpacing laws regulating it.
DNA evidence was undeniably the key to the arrest and charging of Lonnie David Franklin Jr., believed to be the Grim Sleeper responsible for a string of slayings in Los Angeles between 1985 and 2007. Many will cite this use of DNA evidence in a high-profile serial murder case as one more reason to increase reliance on this important investigative tool. But in fact it's precisely at a moment like this when an investigative triumph can blind us to the dangers of expanding genetic surveillance.
There were actually three different uses of DNA evidence in the Grim Sleeper investigation that we should be concerned about. They all turn basic assumptions about our criminal justice system on their heads. The first is the use of familial DNA searches. Most of the time, investigators search state DNA databases to find a complete match linking a particular person's DNA profile to crime scene evidence. Familial matches are different. A "hit" in the database establishes definitively that the person in the database is not the wanted suspect, but suggests that it is one of his or her relatives.
Why is this problematic? Keep in mind that in usual police "searches," there must be individualized probable cause for suspicion, as required by the 4th Amendment. With familial searches, the only reason the police identify their suspect is because he is genetically related to someone in a DNA database. If that sounds like guilt by association, it is. Why should the mere inclusion of one of your family members in a DNA database mean that you might be a target of an investigation one day?
The second investigative technique used in the Grim Sleeper investigation was the use of "abandoned" or "discarded" DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.
Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?
The third use of DNA in the investigation is unlikely to receive much fanfare; it wasn't successful. Yet it is equally dangerous to civil liberties. Two years ago, LAPD vice officers arrested a number of suspected johns not as part of a crackdown on prostitution but rather for the purpose of collecting their DNA. (Many of the Grim Sleeper's victims were prostitutes.) Such a technique is known as a DNA dragnet. As of January 2009, Proposition 69 allows the state to collect DNA not just from those convicted of felonies but also from all people who have simply been arrested on suspicion of committing felonies. Atty. Gen. Jerry Brown's formal approval of familial searches is still limited to searching profiles of convicted felons in special cases, but it's not hard to imagine an expansion to all cases regardless of severity, and to arrestee profiles as well.
There's no doubt that DNA evidence gives the police an important tool. Without it, the Grim Sleeper case would probably be yet another unsolved case. The trouble is that we are rushing forward with these uses of DNA evidence with little consideration of the ever-increasing scope of genetic surveillance over our citizens. Many states that have not formalized their policies in these areas have taken note of what the police did in this case. What matters isn't just that this particular fish was caught; it's the ever-widening net over us.
Elizabeth Joh, a professor at the UC Davis School of Law, has written widely about DNA evidence, undercover policing and police privatization.
The most read and the most emailed piece on the Time Magazine site right now is Joel Stein's "My Own Private India." In it Stein says that the increasing presence of Indian-Americans in his hometown of Edison, New Jersey "bothers me so much."
The apology does not in fact concede that there is reason for offense. That was not the "intent" of this "humor" piece.
Perhaps the most serious error in the piece is that it is an ostensible humor piece lacking any humor. What is most galling, however, is that this ostensibly serious news magazine fails to have any sense of history.
Perhaps if magazines like Time had spent more time on better reporting, the editors would have recognized the obvious logical and historical error in this "funny" paragraph. The "white children" in Edison inclined towards crime could now practice their craft on Indian Americans. Indeed, this was the case in the 1980s suburban New Jersey, the passing of which Stein laments.
in 1987, a thirty-year-old Indian immigrant bank manager, Navroze Mody, was beaten to death by a gang chanting "Hindu, Hindu!" A group which called itself the "Dot Busters," which included local teenagers, had been targeting the hard-working community of Indian immigrants with low-level harassment for months. The "dot" referred to the bindi Hindu women wear on their foreheads.
In July of 1987, a month before Mody's death, a local newspaper called attention to the rising number of harassment incidents. In response, it received a letter, signed "Jersey City Dot Busters:"
"I'm writing about your article during July about the abuse of Indian People. Well I'm here to state the other side. I hate them, if you had to live near them you would also. We are an organization called dot busters. We have been around for 2 years. We will go to any extreme to get Indians to move out of Jersey City. If I'm walking down the street and I see a Hindu and the setting is right, I will hit him or her. We plan some of our most extreme attacks such as breaking windows, breaking car windows, and crashing family parties. We use the phone books and look up the name Patel. Have you seen how many of them there are? Do you even live in Jersey City? Do you walk down Central avenue and experience what its like to be near them: we have and we just don't want it anymore. You said that they will have to start protecting themselves because the police cannot always be there. They will never do anything. They are a week race Physically and mentally. We are going to continue our way. We will never be stopped."
In Jersey City, a few weeks after Mody's death, a young resident in medicine, Dr. Sharan, was assaulted by three young men with baseball bats as he walked home late one night. One of the young people yelled, "There's a dothead! Let's get him!" as they set out with their bats. Sharan was beaten severely and left unconscious with a fractured skull. He was in a coma for a week, in the hospital for three weeks, and suffered permanent neurological damage.
A search on Time's website of its content in the 1980s and 1990s reveals no mention of the "Dot Busters" or of Navroze Mody—though perhaps the archive is not as comprehensive as it appears (or, more likely, the search engine is not particularly good). A group of thugs terrorized a particular group in the country on account of its race or national origin or religion—even going so far as to kill someone—and the country's major newsmagazine seems to have failed to find it worthy of significant attention. As a child growing up in a far more gentle environment in 1980s Ohio, I learned of the terror of the "Dot Busters" from Indian-American media.
A review of the last ten columnists published by Time Magazine reveals that 100% of them are white, and only 10% are female. Newsweek can boast the powerful writing of Fareed Zakaria (who was conservative enough to support the invasion of Iraq). Perhaps Time should apologize to the Indian-American community by replacing Stein with an Indian-American columnist. Kal Penn, who has the added virtue of actually being funny, would be ideal (see his punchy putdown of Stein's column).
The closing line of my recent blog post asked: "Is even democracy a luxury for the poor?"
This comment resonated with me, struck me as accurate. Yet it ran counter to my thinking about Robert C. Byrd for the past few decades. While I have always considered Byrd a fine man (well, aside from his Klan membership as a younger man) and appreciated his dedication to the Senate, I saw him primarily as a poster child for the excesses of pork barrel politics. Rarely was he in the news, it seems, without some mention of the federal aid he was able to channel to West Virginia. Indeed, his obituary in the New York Times states that he built, "always with canny political skills, a modern West Virginia with vast amounts of federal money." Elsewhere, it includes this quote from Senator Byrd himself, "I lost no opportunity to promote funding for programs and projects of benefit to the people back home." He referred to West Virginia as "one of the rock bottomest of states."
Rockefeller's comment, however, reminded me of what was at stake with all that aid for West Virginia. It was not only welcome centers and courthouses and such. It was the state's development from an economic backwater, which requires roads and bridges. As Rockefeller observed, advanced sanitation makes a big difference, too. Indeed, it goes hand in hand with education and other health and human services in enhancing the state's human capital.
The quote from Rockefeller also reminded me of this provocative line from Aravind Adiga's The White Tiger (2008): "If I were making a country, I'd get the sewage pipes first, then the democracy." The White Tiger is a story from the other side of the world—from India—but it is related to what Byrd tried to do for West Virginia in several senses. The Indian story—like the story of many West Virginians—is about rural poverty. Its social, geographic, and economic context is the uneven development that has left rural India's residents behind while much of the rest of the nation zooms ahead in the name of progress (and, of course, capitalism). Parallels to rural West Virginia are apparent.
We city dwellers don't think much about sewage pipes. We take them for granted. But lots of people in the U.S. and in India don't have them. Indeed, some don't even have clean water. (Read U.S. stories here and here.) When those living in metropolitan areas fret about roads, it is about getting a car pool lane, or sound walls, or even a whole new freeway. In rural areas, residents fret about how to get your (dirt) road graded, never mind getting it paved. (Read stories about the economic significance of road building in India, too, here and here).
Both the Rockefeller and Adiga quotes suggest the power of government to lift people out of poverty—perhaps even the nation state's duty to do so. If we agree that the government should play a role in responding to deprivation, is it fair for West Virginia to get more federal aid (assuming that it does on, say, a per capita basis) than, for example, Pennsylvania or Washington or Florida? Wouldn't it represent distributive equity to give West Virginia and similarly deprived states more? Of course, the Indian Constitution recognizes some socio-economic rights, e.g., the right to life, which has been construed to obligate the state to provide a certain healthcare and education infrastructure. The U.S. Constitution makes no similar provision, protecting only civil and political rights. (Yet, as Robert Byrd once pointed out, "The Constitution does not prohibit humble servants from delivering whatever they can to their constituents").
Constitutional and other legal mandates aside, the question remains: what should government do in the face of grossly uneven development and the resulting spatial inequalities in access to infrastructure and services? What is just and ethical? I've been writing recently about Amartya Sen and Martha Nussbaum's capabilities framework for assessing well-being, including their thinking about government's role in endowing residents with core capabilities such as those life and bodily health. I'm recalling Sen's use of the phrase "antecedent inequality" to justify giving more to those with less, to raise them to a sort of parity with the "haves." That has me reflecting on Robert Byrd's career a little differently than I previously had. I'm now wondering: is it really "pork" if it responds to antecedent inequalities? If getting sewage pipes into rural places—be they in West Virginia or India—helps rural residents achieve a minimum level of well-being, shouldn't we be doing it?
Development consists of the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency.
That leaves me wondering: At what point are citizens so deprived of what they need to survive—what Nussbaum refers to the as the life and bodily health capabilities—that they are effectively incapable of exercising the civil and political rights so valued by liberal democracies. Isn't the lack of sewage pipes and other basic infrastructure an "unfreedom" that cries out for development—whether in India or West Virginia?
Cross posted to SALTLaw.org/blog and Legal Ruralism.