Coulter’s Center, and principally Coulter himself, are responsible for the revolution in the law and social consciousness  vis-à-vis indian tribes and nations. (Note that even using this term ‘nation’ is framing the issue in a very decisive way.) He wrote the original draft of the UN Declaration on the Rights of Indigenous Peoples, and thirty years later it was adopted by the UN General Assembly. (Also note that UN declarations are not directly binding, so since it took three decades to even get that accomplished, one gets a sense of just how threatening it is to the current regime to recognize peoples’ rights and not just individuals’ rights.)  IRLC was the first to bring an indigenous rights complaint to the Inter-American Commission on Human Rights and also the first to lodge a complaint against the U.S. with the Commission for violations of indigenous rights.

For instance…

In Yanomami v. Brazil, the Commission recognized the duty of the Brazilian government to demarcate (recognize and protect) the Yanomami tribe’s land.  In Tingni v. Nicaragua the Inter-American Court ruled that an indigenous tribe has a right to own the resources that it traditionally uses in its culture.  In Mary & Carrie Dann v. U.S., the Commission ruled that the U.S. had violated the Shoshone tribe’s right to due process of law by taking away its land without any compensation. (Even though the U.S. has not accepted jurisdiction of the Inter-American Court on Human Rights, having ratified the Inter-American Charter on Human Rights, it is subject to decisions by the Commission, which functions like a court.)  These and more were all brought by the IRLC in the Inter-American system.  Coulter expressed serious doubt that the term ‘jurisprudence’ could be applied to describe the progress of “Indian Law” because precedent of former decisions are not binding on future ones by the Commission or the Court.  That said, judgments like these provide a solid framework of interpretation of the rights guaranteed by the American Convention as applied to Indigenous People, and thus empower communities to stand up to defend/claim what is theirs by right, not by the grace of the State.

More so than in any other area of law, to study the development of justiciable human rights reminds lawyers and law students alike that the law is not static, not brought down from the mountain set in stone.  To illustrate, Coulter used the Hegelian concept Aufgehoben, which means something like ‘the thing is becoming what it is not yet.’  And in his deep, resonate voice that would have done well as the father figure of the nightly news had he not been so successful as a lawyer, Coulter asserted that the injustices borne by indigenous populations throughout our hemisphere are shameful not only in  degree of violation but in the unapologetically unequal application of the law to prevent or remedy them.  Good night and good luck.

The topic, it seemed, was not all that pertinent to Buffalo. …  …

Rachel Lloyd, a renowned activist in the field of child sex trafficking in the U.S. and  a survivor of sex trafficking herself, probed the packed house at the Baldy Center for word associations with the term “teenage prostitute”.  “Pimps and Hos”, “small clothes”, “drug addict” were all thrown on the white board. (Lloyd was a particular fan of the euphemistic “small clothes” and vowed to use it in her future speaking engagements.)  Then she called for terms connected to “child sex trafficking victim” and the audience enthusiastically offered words like “slavery”, “abroad”, “locked rooms”.  The terms, it turns out, refer to the same population.  Americans tend to be discriminatory against “Keisha” while pitying “Katya” when odds are both enter the sex trade because of circumstances beyond their control between the ages of 12-14 and both feel they cannot leave.

A similar exercise with the now fully engaged public produced a similar artificial distinction between our associations with “pimp” (cool, positive, pop culture icon) and trafficker (Russian mob, white man of indeterminate age, sketchy, without morals). The distinctions are not entirely the fault of the media (Law and Order?) nor that of the numerous hip-hop artists (It’s Hard Out Here For a Pimp!) who glorify that lifestyle.  The push to recognize victims of international trafficking as victims culminated a decade ago in a UN Protocol that removed any presumption – or even relevance – of the consent of the victim in qualifying for the protected status. The U.S. ratified the convention. This produced a rather glaring inequity with regard to victims of the domestic sex industry and victims of the international sex trade.  A 16-yr-old Ukrainian girl gets picked up in a hotel room and offered asylum while the 16-year-old Bronx girl gets picked up on the corner and put in jail.  Part of Lloyd’s advocacy is in getting legislatures to recognize the inherent injustice of charging a man with statutory rape if he has sex with an underage girl regardless of her consent – until, that is, he pays her $40 in which case it’s the girl’s unfortunate lot in life to bear the consequences.

The bulk of the talk was painting a picture of the various forces in American girls’ lives that lead them to enter the sex industry and keep them there without the need for locked doors.  Although statistics in this area are hard to come by, according to some estimates, about 70% of child victims of the commercial sex industry have been sexually abused. I don’t remember the statistics on how many come from poverty, broken homes, failed school systems, immigrant and/or racial minority populations, but the factors are overlapping and predictably correlated.  The other piece of the puzzle that no one wants to talk about (except for Lloyd, who does so unhesitatingly) is the ‘Johns’ who patronize prostitutes. One study estimated that one in seven men has paid for sex in his lifetime. And odds are if he has done so multiple times, he has probably paid for an underage girl.  This resonated with me as I looked around the room to see under seven men in attendance. There was all but an audible collective sigh of relief that the 7th culpable male was apparently not in attendance.  I remember doing a little social experiment of my own recently while in Thailand (known for being a sex tourism hotbed). I asked every male tourist I met if they had ever paid for sex in Thailand.  The answer was always ‘No, not me personally, but I know men who have.’  It is this statisitcally solid result that leads me to conclude that the perpetrators are never the ones sitting next to you.

My friend and student colleague had volunteered at Lloyd’s non-profit organization GEMS (Girls Educational & Mentoring Services). This was the connection that brought Lloyd to Buffalo. When Lloyd openly acknowledged her former helper, who happens to be a law student of Puerto Rican descent, as having been one of the more effectual counselors in her program, I knew that the audience would presume that she was a survivor herself. (She is not.) My friend shared as much with me afterwards that more than one person had approached her to ask in round-about ways how she came to work at GEMS.  A Buffalo area judge even has asked her to speak at an event where Lloyd’s documentary film “Very Young Girls” is to be screened.  It was surmised in confidence that if she were white, people would not have made this assumption. I agreed, but with the caveat that if she looked slavic (as I do a bit) they may have assumed she was trafficked from abroad.  Just goes to show that with all the education in the world, we are all slaves to a host of subconscious assumptions and biases.

Sure enough, when I ran into the law-student-cum-police-officer in class the next day, I asked out of curiosity if he or anyone he worked with had experience with teenage prostitutes. Oh sure, he replied, we pick them occasionally. They are usually on something and doing it for their next hit. Perhaps this underserved population in Buffalo will be the target for law students interested in applying much needed international human rights norms here at home. Stay tuned.

SPEAKERS: Rebecca French, Professor and Director of the Baldy Center for Law and Social Policy, University at Buffalo; Craig Preston, Adjunct Instructor, Asian Studies Program, University at Buffalo; Robert Vanwey, Ph.D. candidate, History Department, University at Buffalo.

DESCRIPTION: A team of three scholars with backgrounds in Criminal and Civil Litigation, Legal Anthropology, Tibetan Buddhist Studies, and Chinese History, funded by the UB Baldy Center, is translating the Law Codes of the Dalai Lamas of Tibet. Never before accurately converted into English, the final version of these law codes will be a significant addition to the corpus of Asian legal texts and the emerging field of Law and Buddhism.

First written in approximately 1640 by a regent of the Fifth Dalai Lama, the Law Code of 12 Sections will be introduced by Rebecca French (Law School). Dr. French first translated and annotated them line-by-line with a former Tibetan magistrate over many years of fieldwork with Tibetans in India and Nepal. She will explain how she first learned of them and outline several features of the codes. Then, Rob Vanwey will describe what the original texts looked like and how they were converted: first into a more formal written script, and then into a digital format that the team then checked line by line. He will also discuss the teams very slow process of rendering a final version. Lastly, Craig Preston will discuss the final version being produced and the many problems that the team has encountered in working on these difficult texts. For example, most dictionaries whether Tibetan – Tibetan, Tibetan – Chinese or Tibetan – English, were not prepared by legal scholars and thus do not reflect an understanding of legal distinctions, giving wildly variant possible translations even for basic terms. Also, exactly what is Buddhist about these texts written by Tibetan Buddhists? How is the Tantric Buddhism of Tibet — which permeates every other aspect of Tibetan life — reflected in Tibets legal system?

The presentation will include pictures and copies of the materials. The speakers hope to engage the audience in a general discussion of issues brought up by the presentation including the processes and difficulties of translating Asian texts accurately.

Following earlier work analyzing judicial behavior from an economic (rational-choice) standpoint, we set forth and test a model of self-interested judicial behavior. We assume, plausibly in the case of federal judges, who enjoy life tenure (and our empirical analysis is limited to such judges), that judges have leisure preference or, equivalently, effort aversion, which they trade off against their desire to have a good reputation and their desire to express their legal and policy beliefs and preferences (and by doing so perhaps influence law and policy) by their vote, and by the judicial opinion explaining their vote, in the cases they hear. We use this model to explore the phenomenon of judicial dissents, and in particular what we call dissent aversion, which sometimes causes a judge not to dissent even when he disagrees with the majority opinion.

We examine dissent aversion in both the federal courts of appeals and the U.S. Supreme Court. For example, we use dissent aversion to explain the well-documented panel-composition effect on judicial decisions in the U.S. courts of appeals. An implication of our model is that the effect, which is typically attributed to the power of judges with extreme conservative or liberal views to influence more moderate judges to vote with them, can be explained in terms of self-interested behavior that is independent of the influence of other judges.

Lee Epstein is the Henry Wade Rogers Professor at Northwestern University, and a Fellow of the American Academy of Arts and Sciences and the American Academy of Political and Social Science. A recipient of ten grants from the National Science Foundation for her work on law and legal institutions, Epstein has also authored, co-authored, or edited over 100 articles and essays, as well as 14 books, including the Constitutional Law for a Changing America series (winner of the Teaching and Mentoring Award from the Law and Courts Section of the American Political Science Association), The Supreme Court Compendium (winner of an Outstanding Academic Book Award from Choice), and The Choices Justices Make (recipient of the Pritchett award for the Best Book on Law and Courts). Her book with Jeff Segal, Advice and Consent: The Politics of Judicial Appointments (Oxford University Press), received extensive media coverage, with its findings reported in the Wall Street Journal and the New York Times, among other outlets.

Siva Vaidhyanathan is a cultural historian and media scholar, and is currently an associate professor of media studies and law at the University of Virginia. From 1999 through the summer of 2007 he worked in the Department of Culture and Communication at New York University. Vaidhyanathan is author of numerous articles and several books, including Copyrights and Copywrongs, The Anarchist in the Library, and the forthcoming The Googlization of Everything: How One Company is Disrupting Culture, Commerce, and Community — And Why We Should Worry. Vaidhyanathan is a frequent contributor on media and cultural issues in various periodicals including The Chronicle of Higher Education, New York Times Magazine, The Nation, and Salon.com, and he maintains a blog, www.googlizationofeverything.com. Vaidhyanathan is a fellow of the New York Institute for the Humanities and the Institute for the Future of the Book.

The blog and forthcoming book are dedicated to exploring the process of writing a critical interpretation of the actions and intentions behind the cultural behemoth that is Google, Inc. The book will answer three key questions: What does the world look like through the lens of Google?; How is Google’s ubiquity affecting the production and dissemination of knowledge?; and how has the corporation altered the rules and practices that govern other companies, institutions, and states?

This event is free and open to the public. RSVP required – BaldyRSVP@buffalo.edu or call 716-645-2102

Second International Osnabrück Summer School on the Cultural Study of the Law

[From the Osnabrück Summer School on the Cultural Study of the Law]

We are pleased to officially announce the opening of admissions to “Synergies,” our second annual Summer School on the Cultural Study of the Law that will take place this August, from the 4th through the 18th. Hosted by the Institute of English and American Studies, in collaboration with the University of Copenhagen, the Birkbeck School of Law at the University of London, York University, Toronto, and the European Legal Studies Institute at the University of Osnabrück, the summer school seeks to bring together graduate students from around the world to promote and examine the interdisciplinary study and research of law and culture.

Graduate students pursuing a PhD in the humanities and advanced students of the law who are interested in the interdependence and interaction between law and culture are invited to apply. During the two week program, students will partake in a unique experience of scholarly collaboration and exchange through workshops, public lectures, panel discussions, excursions and a final symposium.

The School will offer a total of four workshops for 20-25 international graduate students over a two-week period. The first workshop will be concerned with basic theories, concepts and perspectives within the emerging field of cultural legal studies, focusing specifically on the range and potential of interdisciplinary studies and approaches. The remaining three workshops will focus on key areas of critical inquiry that have been central to the dynamic development of the field and are of particular importance within an European context:

• The relation between human rights and cultural rights
• Historical development and current debates about culture as heritage, property and as a resource and its legal definition and regulation (including concepts like copyright, intellectual property and authorship)
• The cultural presence and representation of the law and the possible emergence of a transnational legal culture

Students interested in taking part in the Summer School should submit  applications no later than April 30, 2010.

Participant Eligibility

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are invited to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. There are openings for approximately 25 students to participate in the summer school.

Application Process

Applicants should complete:

• An application form, indicating preferred workshop that can be foundhere.

• A statement of purpose no more than two pages long, describing current scholarly interests, previous research, and plans for how the Summer School would specifically further these interests and plans.

• An up-to-date curriculum vitae.

Questions

Questions about the First Osnabrück Summer School on the Cultural Study of the Law may be directed to any of the Summer School Coordinators:

• Devin Zuber, Coordinator for the Humanities, Faculty Contact and Institutional Cooperation

• Matt Lemieux, Coordinator for Legal Studies

• Nadja Hekal, Assistant Coordinator

There was a very slim case against Moussaoui, a French citizen born to Moroccan parents, who faced racism as a youth in France and radicalized when he went to London for graduate school. There he discovered the draw of the jihad and met Imam Abu Hamza al Masri a.k.a. “Captain Hook”.  Moussaoui didn’t know about the actual 9/11 plans, he only knew that there was some attack by a plane that would happen at some uncertain point in the future. Presumably, he felt he would be in the pilot’s seat, so to speak, on doomsday, but according to Donahue, he wasn’t doing very well in his pilot training school. She said he was good at taking off but couldn’t get down the landing. I resisted the urge to ask why he needed to know how to land.  Jokes like that will remain in bad taste for at least my lifetime.

These interesting anecdotes about his background and his trial were the strength of the presentation. We learned Moussaoui had had a girlfriend in France whose parents had disapproved of him because he was Arab by descent.  We learned that when the FBI had received word of a possible al-Qaeda link by the name of Zacarias Moussaoui in Paris, the American agent posted in Paris took one look at the number of Moussaouis listed in the Paris phonebook and relayed back something to the effect that there was no hope of figuring out which one he could be. We learned that some 9/11 victim family members who testified during his trial actually testified for the defense - apparently taking the opportunity to say that their lost loved one would have wanted clemency for the would-be hijacker and to plead against capital punishment. Maybe one of the those testimonies made the difference for the one jury member who would end up the hold out.  Moussaoui is still with us today, in a Supermax prison in Colorado: solitary confinement – more for his safety than for our retribution, I’m told.

At one point Donahue said he was basically convicted for being a screwball. Later she said emphasized he was not psychotic. She said that he spoke English very well and understood the American judicial process – to the point of the judge commenting that Moussaoui knew it better than his attorneys. But later she seemed to contradict herself in concluding that Moussaoui didn’t understand what would be exculpatory and had only realized at the end when there were families testifying in his defense that he could have had a fair trial. Or rather, a fairer trial. Was she arguing he hadn’t had a fair trial? She did say it was better than a military tribunal would have been, and thanks to the decorum of the trial attorneys and the modicum of inherent courtesy built into our justice system (my phrasing), according to Donahue the Arab world was impressed by our treatment of ‘Mr. Moussaoui’.

The picture Donahue painted of Moussaoui was not very sympathetic until one realizes he must have been unhinged. He was unrepentant, pled guilty immediately to all charges against him no matter how tenuous the prosecution’s causal nexus, refused all assigned defense lawyers, refused to cooperate even with the human rights lawyer his mother retained on his behalf, and countered a motion to declare him unfit to stand trial with a snotty psychological examination of the judge:

Mental Status Enumeration: Axis 1; Acute symptoms of Islamophobia with complex of gender inferiority.
Diagnostic Impressions: Legal pathological killer instinct with egoboasting dementia to become supreme.
Conclusion and Recommendations: Immediate psychiatric hospitalization to specialist unit (propose unit UBL treatment center…)

For a time the judge humored his attempt at pro se representation but one can only put up with so many references to United Satan of America.

Although I question the uniqueness of Donahue’s conclusion that the United States missed an opportunity to see our own (general, Western) culpability behind this neo-Muslim French citizen’s infatuation with the idea of martyrdom, I admit that her journalistic exposé of his trial and his life is important in anticipating what forms of aggression these movements will lead to next.  As for her quest to uncover what led him to radicalism – it would be nice if the answer to stopping terrorism was as simple as understanding the personal stories of would-be terrorists and then if you have the president’s ear, whisper  ‘pssst, every time we flex our muscles on the world stage, we make more enemies’.   There is a risk in my mind however of granting individual terrorists too much spotlight and infamy.  I’m sure Donahue’s book contains the answer to my question – what makes him so special? Not much in Moussaoui’s back story distinguished him from the masses of disaffected young Arab men in Western Europe until he decided to put on the army fatigues and go off to fight in Chechnya in his first participation in the perceived jihad.  The best thing we could have done was give Moussaoui a trial that was open to the public.  This opportunity is denied too many of our accused.

I say ‘us’ because back in the seminal stages of planning this event, I think I had a hand in its conception. Professor Melish must take all the credit however for pulling it together. The odds were against us and still it was a success – measured by not only my impressions but the reactions of the students and community members who did come.

The Buffalo Human Rights Center in conjunction with the Baldy Center pulled together three perspectives on how and why a local government would pass legislation that implements international human rights norms – as codified in international conventions. Krishanti Dharmaraj videoconferenced in (a more fancy way of she Skyped) from San Francisco. She SUCCESSFULLY got her city to adopt the standards and procedures set out in CEDAW (Convention for the Elimination of All Forms of Discrimination Against Women).  Ejim Dike flew in from New York City. She has tried and is still trying to get the city to adopt the level of specificity and the preventative, proactive approach
of CERD (Convention on the Elimination of Racial Discrimination). Finally Martha Davis flew in from Massachusetts. She participated in a (largely) failed effort to get Massachusetts to pass a version of CEDAW (which, by the way, the U.S. hasn’t signed yet.)

The ‘how’ was addressed best by Dharmaraj: identify the treaty norms you’re interested in, build a coalition, know your local legislature, get a strategic sponsor for the bill, and set as your goal not only the passage of the bill, but the implementation that will follow, and where it will get you 10 years down the line. But before you do any of that you must ask and be in a position to be able to answer – WHY? What are the advantages to using a human rights framework rather than relying on current domestic legal protections for, among others, women, minorities, or children? Well for one, the thoughtfully crafted language of conventions is broader and deeper – and thus more useful in applying to more situations than domestic definitions of ‘discrimination’ or ‘domestic violence’. Second, the human rights framework is simply a different approach that can be used to complement current homegrown tools to promote equality. Whereas in the U.S. we have traditionally used litigation, or the threat thereof, as a means to address discrimination by the law (Civil Rights Act creating a cause of action, the Bill of Rights giving standing… etc.) In the world of human rights, instead of relying on individual actors to press the system to change, the government is tasked with looking at its policies and practices (through analysis of numbers, review by taskforce, reporting, monitoring) to find where vulnerable groups are at a disadvantage. This takes the direct blame out of identifying and remedying areas of discrimination, and has its own distinct merits. It could arguably be more effective if it prevents lawsuits down the line.

Krishanti provided some great examples of how the San Francisco ordinance that embodied the rights of CEDAW changed the situation for women on the ground (not in the sky.)  Women look good in numbers, she said. For example, of all city employees, 62% of appointed positions were female. No problem from a CEDAW perspective, right? Well, once the numbers were scrutinized by the task force (created by the ordinance) it became clear that women were glaringly absent from positions carrying significant power and responsibility – most notably absent from the Police, Fire Dept, Airport, and Port Authority.  After this discrepancy was revealed, a woman was appointed head of the Airport (Department?) for the first time.

Another example – a review of local artists’ opportunities to get gallery space showed that overwhelmingly the exhibitions spaces were given to male artists.  Lack of talented females, perhaps?  Well, a closer look at the city’s practice of assigning gallery space revealed that if the only time an artist can submit his/her name to the list is in person on a Monday at 9AM, this discriminates against artists with families, and artists with day jobs – two criteria that happen to disproportionately adversely affect women, but certainly were hard for certain male artists as well. Although the city was unwilling to change the day and time it took the names, it did change its practice to accommodate proxies to sign up for applicant artists. So I guess someday if friendless people are a protected class, this might be an issue, but until then, a rather solid step in the right direction.

The stories of New York and Massachusetts, although not as happily-ever-after as San Francisco, perhaps resonated more with the audience because in a city like Buffalo which is run like a large, inefficient and slow-moving business (this apparent contradiction is a real comparison made by an audience member) changing the MO of the legislatures to consider human rights would certainly be an uphill battle if not entirely a fantastical dream. Dike (pronounced DEE-Keh), of the Human Right Project at the urban justice center told of initially having a lot of momentum with their proposed bill. Their goal was to get reporting mechanisms in place so the city could address some of its pervasive and systemic racism. For example – how is it that at the city’s own admission white youth are more likely to be in possession of marijuana than black youth but black youth are the ones disproportionately being stopped on the street and searched? Or disproportionately pulled over when driving? Or that black youth get punishments three times as severe in city schools for the same infraction as white youth? The more effective answer, according to Ejim, is not to concentrate on individual complaints but called the city’s attention to the discrepancies and make it legally obligated to develop an action plan. Unfortunately, the city councilman who initially backed the bill reached his term limit and left office. Procedurally, once a bill has been proposed, outside groups have no control over who in the city council will pick it up. And a bill will expire after four years if not voted on. This bill has expired twice now.

Davis could more speak to what not to do. In your coalition, do not be so top-heavy with academics that you lose sight of and support from the people.  Don’t rely too much on one organizer. Don’t devolve into a women’s networking group that has luncheons and self-esteem workshops… (This last one may be an obvious cautionary tale?) Don’t let your bill be watered down.

After a short break half the group stuck around for a more interactive workshop led by Krishanti who was curious  know what Buffalo’s plan was, what treaty provision we were interested in implementing – a subtle inquiry into what she was doing talking to us.

Silence.

If I were a better person I would have spoken up. I got the idea after attending a Lawyers Guild Conference in Seattle and hearing about the reporting the the Meiklejohn Institute is doing in Berkeley – the MI got the go ahead from its city council to report  directly to the Human Rights Commission – the treaty body created by the ICCPR (int’l covenant on Civil and Political Rights) to which the U.S. is party.  They report on the degree to which the guaranteed rights are being realized because the U.S. does not do an adequate job monitoring and is very late on its reporting obligations to the HRC.  I returned to Buffalo excited that perhaps we could use their model and set up a human rights clinic and law students could be used to gather a comprehensive report on the status of human rights which the U.S. is obligated to protect (respect and fulfill). The problem with this idea (the most glaring of many) is that the HCR does not have the jurisdiction to be in a dialogue with a city government; international human rights law binds the federal government (obviously). So basically what I was proposing was a very elaborate and time-consuming publicity stunt.

But from this idea grew the awareness that there WERE ways that the international covenants – specifically the framework they represented – could be implemented at the local level, in a way that is innovative and meaningful. San Francisco inspired us. Yet keep in mind, San Francisco is a city that – even previous to adopting the CEDAW bill of rights and obligations – had already declared itself a sanctuary for illegal immigrants and had also adopted universal health care for its residents. Buffalo, on the other hand, won’t open its prisons up to third-party investigators after a slew of inmate suicides – the most recent one by a man who had been behind bars a mere three days.  Let’s just say, we have a different atmosphere.

I hope some of the ideas that were brought to light on Wednesday live on with the attendees.  And , I hope that the Buffalo Human Rights Center can work not only to get UB students out of the library, but to get itself off of north campus every once and a while and closer to a community that matters.