Prominent domestic and global policy makers who participated in the NYU School of Law’s second annual Global Economic Policy Forum (GEPF) on April 14 addressed the worldwide effects of the downturn. Jean-Claude Trichet, president of the European Central Bank, gave the keynote address with a decidedly international focus, expressing concern about wobbling global markets and emphasizing that only an immediate, global response could revive them.

The GEPF program, cochaired by Stuyvesant P. Comfort Professor of Law Geoffrey Miller, director of the Center for the Study of Central Banks, and Adjunct Professor Alan N. Rechtschaffen, was split into two sessions. In the first, participants discussed domestic policies, and, in the other, international responses to the ongoing turmoil in the U.S. economy and its reverberations in world financial markets. Domestic panel speakers included Donald Marron, senior economic adviser on the President’s Council of Economic Advisers; Tevi Troy, deputy secretary of the U.S. Department of Health and Human Services, and Kevin Warsh, member of the Board of Governors of the Federal Reserve System.

Warsh and Marron cited actions that the Federal Reserve and the Bush administration have taken to ameliorate volatile credit and financial markets and boost the sluggish U.S. economy. However, they said it would take time for these policies to become effective. For example, the Federal Reserve had cut interest rates by three and a quarter percentage points between September 2007 and May 2008, and it has offered banks hundreds of billions of dollars in liquidity to keep their credit flowing. The U.S. government passed a $150 billion fiscal stimulus plan in February, which provided tax incentives to encourage businesses to spend, as well as stimulus checks ranging from $300 to $1200 per household, mailed in late April. Marron said he expects these two moves to add 500,000 to 600,000 jobs to the economy, but not until the end of 2008. “People sometimes forget how quickly we’ve reacted, given some of the delays that are involved,” Marron said.

Most importantly, it will take time for the full impact of the Fed’s rate cuts to be felt, Marron said. Fed studies show that it takes a year after rate cuts are implemented for half of their effects to be felt in the economy. Therefore, he said, the Fed’s rate cuts from the past several months should make a noticeable difference in the economy during the second half of this year and the start of 2009. Though not back up to speed yet, credit markets have already shown “early, encouraging signs of repair,” Warsh asserted. “Our tools are incredibly powerful, but they don’t work overnight.”

In the immediate aftermath of the rate cuts, however, high oil and other commodity prices have made consumer prices higher, causing inflation concern in recent months. Until credit markets regain their stability, more financial shocks could take place in the near future as companies continue to write-down overvalued assets, Warsh said. Already, the collapse of the subprime mortgage market has caused about $245 billion in asset write-downs and related credit losses.

Of course, write-downs in the subprime housing and related credit markets have negatively affected more than just the U.S. economy and credit market. Global financial markets also face a “situation of high uncertainty,” said European Central Bank President Trichet in his keynote speech following the domestic policy session.

Trichet referred to the recommendations from the April 11 Group of Seven Nations Conference, which called for more industry oversight and transparency, saying that financial institutions should immediately disclose the extent of their losses. He also noted the need for continued cooperation among the world’s central banks, as well as greater regulatory oversight of the financial industry. “The present turbulences have, once more, demonstrated that opacity as regards markets, financial instruments and real situations of financial institutions is a recipe for catastrophe,” Trichet said.

Buoyed by an abundance of liquidity and profits, as well as the creation of increasingly sophisticated financial products, the beginnings of the current financial crisis began well before last August, when signs of U.S. mortgage related troubles began to show, Trichet said. At that time, market participants operated under the false assumption that asset prices would continue to climb indefinitely. “The much higher degree of contagion that followed stemmed from and was reinforced by [these] factors,” Trichet said.

Trichet commended U.S. Treasury Secretary Henry Paulson’s recent proposal to overhaul the American financial system’s structure, but said any solution to the current financial crisis must involve the commitment of many countries together. “The present turbulences are a global phenomenon,” Trichet said. “Only a global response can be effective.”

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“I am honored to take the helm of this remarkable institution,” said Welters, who is currently vice chair and has been a board member since 1997. “I greatly appreciate the lessons that I have learned in leadership and philanthropy from Lester Pollack. I see this as a defining moment in the history of the Law School.” Moving forward, he said, NYU Law needs to make sure that financial barriers are not a factor in students’ attendance of or participation in the school.

Dean Richard Revesz said he is “thrilled” that Welters will assume the chairmanship. “Tony is one of our nation’s leading entrepreneurs and an inspirational philanthropist,” said Revesz, noting that Welters’s “extraordinary generosity and vision” are responsible for the AnBryce Scholarship, a 10-year-old NYU Law program that offers full scholarships and support to exceptional J.D. students who were severely economically disadvantaged and are the first in their families to pursue graduate studies. “Tony’s bold leadership of the Law School’s capital campaign will allow us to continue to set ambitious goals,” Revesz added.

Welters is executive vice president of UnitedHealth Group (UHG) in Washington, D.C., and president of UHG’s Public and Senior Markets Group, which includes the Ovations and AmeriChoice business units. Ovations is the largest U.S. company dedicated to meeting the health and well-being of people age 50 and older. Welters previously was president and chief executive officer of AmeriChoice Corporation, which he founded as Healthcare Management Alternatives in 1989 with $200,000 in seed money. Under his leadership, the company became a thriving enterprise and was acquired in 2002 by United Healthcare.

After graduating from NYU Law, Welters worked at the Securities and Exchange Commission, spent two years as the executive assistant to Senator Jacob Javits ’26 and then held various positions at the U.S. Department of Transportation.

In 1995, Welters, who grew up with three brothers in a one-room tenement in Harlem, and his wife, Beatrice, launched the AnBryce Foundation. The goal: to cultivate young minds from under-resourced and challenging environments for lives of personal and professional success. They first launched Camp Dogwood Summer Academy, a residential and educational program for needy youths. The AnBryce Scholarship followed in 1998. The Welters have contributed major gifts to the Law School of $11.5 million; this year, they committed an additional $7.5 million as a matching gift to complete the needed endowment of the AnBryce Scholarship. They also funded a chaired law professorship for a faculty mentor to oversee the academic components of the program, which reached its target of 10 students per J.D. class in 2007. Additionally, they have donated another $10 million to the NYU Partners Fund.

A vice chair of NYU Law’s trustee budget and finance committee, Welters also chairs the campaign steering committee and has been instrumental in helping NYU meet its goal of $400 million. In 2004, he received the Vanderbilt Award, the highest honor bestowed upon an NYU Law graduate.

A dedicated philanthropist, Welters is vice chair of the Morehouse School of Medicine’s board of directors. He serves on the boards of the Smithsonian Institution, the Horatio Alger Association of Distinguished Americans and the Healthcare Leadership Council. He has received the National Medical Fellowships Humanitarian Award, the Horatio Alger Award and the African American Chamber of Commerce Chairman’s Award.

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But the political acumen of this former chairman of his Kuomintang Party and mayor of Taipei may be rivaled only by his good looks and appeal: According to one poll, Taiwanese women declared Ma the man other than their husband whom they would most like to have as the father of their children.

Born in Hong Kong and raised in Taiwan, Ma attended the National Taiwan University. Moving halfway around the world in order to continue his legal career, first at NYU and then at Harvard, opened doors for Ma—personal as well as professional. While earning his LL.M. degree at the Law School, Ma became engaged to fellow Taiwanese classmate Chow Mei-ching (LL.M. ’76). The couple married in New York and had two daughters. Kelly graduated from Brown University in May; Lesley is a 2005 graduate from NYU’s master’s program in museum studies and lives in New York City. Chow Mei-ching became a successful lawyer for a Taiwanese bank.

NYU Law Professor Jerome Cohen, who was Ma’s professor at Harvard in the late ’70s, interviewed the president in his Taipei office just days after his inauguration.

What steps are you contemplating with respect to economic cooperation with the mainland? Direct flights on weekends to the mainland began in July. We are also considering a comprehensive economic agreement covering investment guarantees, avoidance of double taxation and setting standards for high-tech industry.

Have you seen changes on the mainland with regards to human rights? Compare [this spring’s] Sichuan earthquake to the Tangshan earthquake of 1976. Back then, the mainland sealed off all information channels and refused aid from the United Nations. Taiwanese planes carrying food to the mainland were shot down by jet fighters. You can see how much they have opened up.

Back in the 1970s, when you were a student at NYU, we couldn’t get mainland people to come to the States. And now people from Taiwan and the mainland are on university campuses everywhere. One of my campaign promises was to let [mainland] university students come to Taiwan. I would like to see more young people cross the Taiwan Strait so 20 years down the road we will see them as the leaders of their respective societies. Education is the best way to bring the two sides together.

How has the advanced legal education of the kind you got at NYU influenced you as a leader? My studies taught me about the ideas of constitutional democracy—freedom, human rights and rule of law. Those are probably the most important that have influenced me in the days since I left the United States.

As you know, Hong Kong and Tibet have taken unique paths toward autonomy. What formula might work for Taiwan? Beijing has tried to apply the “one country, two systems” formula to Taiwan, but with frustrating results. My election generated the opportunity for the two sides to interact, and Beijing now understands that they must trade with and invest in Taiwan, and let Taiwan have a presence in the international arena.

There was a debate in Taiwan as to whether your wife should leave her 26-year career after your election. She did resign when you became president. What does this mean for Taiwanese society? For the last 26 years, Mei-ching has remained my sounding board without ever stepping into my office. She worked at the International Commercial Bank of China, now Megabank, and even though Megabank has government stocks [totaling] less than 50 percent, there’s a slight chance that her bank’s loan to a government enterprise might present a conflict. We must consider the political realities. Taiwanese society still thinks of the wife of a president as someone who has to give up her career. But think about the hypothetical situation where she is president. Should I resign [from my bank job]? It’s a double standard.

Your daughter Lesley, another NYU grad, is also building bridges with the mainland through art. [Lesley has worked with Chinese artist Cai Guo-Qiang on his spring exhibition at the Guggenheim Museum in Manhattan.] My daughter [is] much like my wife: independent and not much interested in politics. She chose to stay in the United States, even during my inauguration.

I hope we’ll see you at NYU despite the fact that U.S. policy bars Taiwan’s president from making public appearances in the U.S. When I visit countries in Central or South America on diplomatic errands, maybe I can change planes in New York. I will let you know.

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A few years ago, Joseph Price, then a graduate student in economics at Cornell University, began building a database of basketball statistics. Price was interested in the relationship between incentives and performance, and he wanted to see whether professional players played better when their contracts were on the verge of expiring. At the time, Price also happened to be reading Blink, the best-selling book by Malcolm Gladwell, which includes a chapter arguing that most people harbor deep-seated, racist attitudes that affect their behavior. As Price read Blink, he realized that his basketball data—which included box scores from individual N.B.A. games—could be used to test Gladwell’s theory. Was it possible, Price wondered, that referees treated players differently depending on their race?

Price, now an economics professor at Brigham Young University, ended up collaborating on the research with Justin Wolfers, an economist from the Wharton School at the University of Pennsylvania. They analyzed every game over the previous 13 seasons, and they concluded that the answer to Price’s question was a clear yes. Holding all else equal—a player’s position, the location of a game and numerous other factors—the professors found that an all-white refereeing crew called between 2.5 percent and 4.5 percent more fouls per game against a black player than a white player. (Black referees, for their part, were more likely to call fouls against white players than black players, though the pattern wasn’t as strong.) “Basically,” Wolfers was quoted as saying in a front-page New York Times story last year, “it suggests that if you spray-painted one of your starters white, you’d win a few more games.”

Neither Wolfers nor Price is a lawyer, and their paper wasn’t about the law. But it did deal with the application of rules by judges, albeit basketball judges. And it addressed an issue that is central to many of today’s most contentious legal debates—namely, the extent to which race continues to play a quiet role in the administration of justice. So the paper became a main attraction at a conference that drew nearly 450 scholars to the NYU School of Law in November. They came for the second annual Conference on Empirical Legal Studies, where they reveled in law schools’ newfound interest in real-world, data-driven research. More than 100 papers were presented, on topics ranging from the impact of voter-identification laws to the pervasiveness of corporate fraud to the role that race plays in sentencing.

Empirical legal studies, often referred to as ELS, has become arguably the hottest area of legal scholarship today. Attendance at the November conference, organized by professors Jennifer Arlen and Geoffrey Miller of NYU Law, was almost twice as high as at the first conference, held at the University of Texas in 2006. A new journal—The Journal of Empirical Legal Studies—began in 2004 and now accepts less than one in 10 of the submissions it receives.

NYU, meanwhile, has become one of the centers for this new brand of empirical work. Almost two dozen members of the faculty, including Lily Batchelder in tax and social policy, Vicki Been ’83 in real estate, Marcel Kahan in corporate law, Florencia Marotta-Wurgler ’01 in commercial law, and Stephen Choi in securities law have published empirical studies in the last few years. And Arlen ’86 and Miller have played a broader role, by helping turn the recent burst of research into something of a formal movement.

In 2006, the two professors joined with Bernard Black of the University of Texas School of Law and Theodore Eisenberg and Michael Heise of Cornell Law School to build upon the foundation created by the Journal of Empirical Legal Studies two years earlier. They started the annual conference and founded the Society for Empirical Legal Studies. Arlen and Miller became the founding co-presidents of the society. “They’re very important players,” said Heise, who serves as coeditor of the Journal. “They’re engaged in their own work, and they’ve also taken on leadership roles to increase the visibility of the Empirical Legal Studies movement.”

Each has done work that has overturned preconceived notions. Miller, Stuyvesant P. Comfort Professor of Law, came to NYU from the University of Chicago in 1995 and specializes in corporate law. In 2004, he published a paper in the then-new Journal of Empirical Legal Studies, with Theodore Eisenberg, that set the conventional wisdom about class-action lawsuits on its ear. While legislators such as Senator Orrin Hatch were decrying “jackpot justice, with attorneys collecting the windfall,” the authors found the average size of class-action settlements had not, in fact, risen over the previous decade. The size of attorney’s fees in such lawsuits hadn’t risen, either. This, the professors dryly noted in their paper, “is not the sort of fact we are accustomed to hearing.”

Arlen, Norma Z. Paige Professor of Law, has taken a special interest in the sentencing guidelines governing corporate criminal liability. In t he 1990s, the U.S. Sentencing Commission adopted sentencing guidelines that constrained judges in most cases to impose higher fines on corporations convicted of crimes. In 1999, Arlen and two coauthors found that in the years after t he guidelines were adopted, corporate sanctions increased dramatically, but they also determined that the legal constraint on the judges was unnecessary. It seems that federal judges voluntarily heeded the call to increase corporate sanctions, whether or not their cases fell under the new guidelines. In 2005, the Supreme Court ruled in United States v. Booker that sentencing guidelines are no longer mandatory.

“The real importance of ELS,” Arlen said, “is that it enables us to formulate legal policy based on the real problems that exist in the world, not the problems we think might exist, based on our ideology.” The field, she added, “gets us away from anecdotes and from making policy based on which anecdote you believe.”

The empirical work on medical liability, for example, is helping to shift the debate about the role of medical error in health care. For all the talk about the soaring malpractice costs, research has shown that the main problem isn’t frivolous lawsuits; it’s widespread medical error. In 2006, for instance, Michelle Mello, an associate professor of health policy and law at the Harvard School of Public Health, testified before a U.S. House subcommittee that“only three to five percent of patients who are seriously injured by medical negligence file malpractice claims and less than half those who claim receive compensation.” In fact, other studies show that patients face a substantial risk of medical error—and support Mello’s finding that only a small fraction of those injured file lawsuits.

The 20 or so NYU Law faculty who embrace ELS are applying their data-crunching skills to other front-page issues, too. Associate Professor of Law and Public Policy Lily Batchelder, for example, testified before the Senate Finance Committee in March about the spottiness of the estate tax. Some individuals who receive extraordinarily large inheritances bear little or no tax burden, Batchelder said, while a small number who inherit relatively small amounts bear substantial tax burdens. Given that the estate tax is scheduled to disappear in 2010 but return in 2011—and that policy makers are likely to fix this oddity in some way—they have a good opportunity to make the tax fairer in the process. In effect, Batchelder is nudging the Senate to get beyond the usual ideological debate over the estate tax and to consider practical matters as well.

In May, Vicki Been, Elihu Root Professor of Law and director of the Furman Center for Real Estate and Urban Policy, testified before the House Oversight and Government Reform Committee’s domestic policy subcommittee about the effects the current wave of foreclosures are having. Been and two coauthors examined sales of properties surrounding foreclosed homes, and concluded that foreclosures significantly depress the sales prices of nearby homes. But what excited Congress and the media more is that a wholly innocent segment of the population has been adversely affected by the mortgage crisis: renters. In New York City, the Furman Center report documents, 60 percent of properties entering foreclosure in 2007 were two- to four-family or multifamily buildings, representing at least 15,000 renter households.

As Arlen notes, the empirical-research movement aims to replicate the scientific methods of the medical sciences. In those fields, researchers can investigate cause-and-effect relationships through randomized trials; some patients are given a drug, some are not, and outcomes are compared. But such trials aren’t feasible in much of the legal world. A judge can’t vary prison sentences, for instance, in order to see the effect that time behind bars has on recidivism. When legal researchers want to determine the effect of a legal change on states, they must rely on sophisticated statistical analysis to distinguish the effect of the law from other influences.

In fact, the main reason for the rise of empirical work is simply that it’s far easier to do now than it once was. Computers can crunch reams of data and allow researchers to tease out the correlations—between, say, a defendant’s skin color and his sentence length—that once would have remained hidden. “You can do work on your laptop today,” Miller says, “that would only have been possible on a mainframe 15 years ago.”

But the empirical movement has also come along at a serendipitous time in the intellectual cycle. The legal fields that were growing in the 1980s and 1990s don’t have quite the energy that they once did. These fields included law and economics (which mostly attracted professors on the right side of the political spectrum) and critical legal studies (which attracted those on the left). By the current decade, the arguments of those fields no longer seemed so new, and young professors discovered that they could more easily make their mark not by offering new theories to explain the world but by investigating what was actually occurring.

Miller notes that the most coveted faculty recruits once had to just be fantastically smart lawyers, like Supreme Court clerks; today, the schools want not only brain power, published papers and impressive credentials, but also research experience in the social sciences. “There have always been people who looked at data, at least since the 1930s,” he said. “But in the last 10 years, it’s become probably the most important development in legal studies.”

ELS has made ripples in Washington, as Batchelder’s and Been’s appearances before Congress suggest. And some of its findings—like those on the prevalence of medical error—have helped support efforts to change policy. But the field’s overall effect on policy—a clear goal of ELS proponents—has been tricky to measure. Part of that is merely a reflection of the field’s youth. But part of it, some scholars say, stems from the fact that doing truly unassailable empirical research is so difficult. “The question is, ‘How good is this stuff?’” said noted legal theorist and law-and-economics proponent Richard Epstein, a visiting professor at NYU who attended the November ELS conference, but has not done empirical work himself. “I have mixed emotions.”

One problem is finding enough relevant data. As Arlen says, “We have too little data to examine many of the issues we care about.” Another is designing a study that enables researchers to isolate the effect of a change in the law from all other potential causes of change. As a result, it is not uncommon to get multiple studies of the same topic with differing results. The best example may be the recent dueling studies over the effect of the death penalty, which have been covered in the mass media. Some studies have confidently declared that the death penalty causes a reduction in murders in the states that impose it. Other papers, just as confidently, say that the amount of noise in the data makes it impossible to conclude that the death penalty is a deterrent.

Yet there is also a broad swath of work that gets nearly universal praise even from skeptics like Epstein. In the end, then, the way forward certainly involves more empirical work, so that the compelling research can ultimately win out over the flawed studies—and so that legal scholars, lawyers, judges and policy makers can get a better understanding of how the law actually affects people in their day-to-day lives.

“Theory is just theory,” as Miller says, “but data is something policy makers take seriously.”

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Shortly afterward, the family’s hotel in Lubochna, Czechoslovakia, was seized by the local Fascist militia and the Buergenthals escaped to Poland, where they applied for English visas. On the day Hitler invaded, they were on a train bound for the border with the visas in hand—only to have their train bombed. They wound up in the Jewish ghetto of Kielce for several years, surviving two massacres. Eventually, they were sent to Auschwitz, where Buergenthal was separated from his parents. About a year later, when the camp was evacuated in January 1945, he was among a group of prisoners who made the 44-mile trek across the frozen Polish countryside that later came to be known as the Auschwitz Death March. Buergenthal was 10 years old, one of only three children who survived. Mundek Buergenthal was executed by the Nazis at Flossenburg in the last days of the war. Gerda Buergenthal survived and spent the next 18 months searching for her son before finding him in a Polish orphanage run by a Jewish relief group.

Today, the boy who survived all that is a 74-year-old, white-haired judge on the International Court of Justice (ICJ) at The Hague—the principal judicial organ of the United Nations and an increasingly busy forum for international disputes that range from boundary feuds to the death penalty. In the decades between then and now, Buergenthal has emerged as one of the main architects of the legal institutions and procedures needed to apply the abstract concept of “human rights” to real-world problems. In 1979, he was elected to a judgeship on the Costa Rica-based Inter-American Court of Human Rights (IACHR), the most important human rights tribunal in Latin America; in 1990, he served on the U.S. delegation to the first postCold War conference in Europe, helping to draft standards for democratic elections in newly formed Eastern European nations; in 1992, he was appointed to the U.N. Truth Commission for El Salvador. In 1995, he became the first American to be elected to the U.N. Human Rights Committee.

Clearly, it’s been a remarkable life. Yet outside academia, the U.N. and the State Department, Thomas Buergenthal is not a household name, which seems a little strange. How could anyone have accomplished so much from such bleak beginnings and not have the kind of fame enjoyed by, say, fellow Holocaust survivor and Nobel Peace Prize-winner Elie Weisel?

The comparison is inevitable: After decades of false starts, Buergenthal has finally managed to put his life story on paper. Ein Glückskind (Lucky Child) describes some of the same events as Weisel’s classic 1958 Holocaust memoir, Night—and despite the hundreds of Holocaust books that have been written in the last 60 years, Ein Glückskind quickly hit the best-seller list in Germany, where it was first published in 2007. So far it’s sold more than 100,000 copies in Germany and is currently in print in nine countries, with British and American publication set for early 2009. Germany, the country that once stripped Buergenthal of his citizenship, is now eager to lionize him: Suddenly, there are television interviews, audio books to record, invitations to be honorary this or that, even the dedication of a library named for him in his mother’s hometown of Göttingen.

Writer Krista Tippett has observed, “Goodness prevails not in the absence of reasons to despair, but in spite of them. People who bring light into the world wrench it out of darkness, and contend openly with darkness all of their days.”

“After all you have seen,” I asked him, “do you really think a species seemingly intent on self-destruction is also capable of creating a coherent, enforceable jurisprudence of human rights?”

The man who has witnessed so much of that darkness has an unhesitating reply: “I don’t have any doubt.”

Full Disclosure

Thomas Buergenthal is an old friend of mine. We met in 1985 when I was the legal affairs reporter for the Atlanta Constitution, fresh from the Master of Studies in Law program at Yale Law School. He had just been named director of the newly established Human Rights Program at the Carter Center in Atlanta, a position that came with a teaching post at Emory University School of Law. He had also just been elected chief justice of the Inter-American Court of Human Rights, a body I’d never heard of. I went to his office at Emory and met a short man whose meticulously groomed curly hair reminded me of my father’s, and whose perfect manners were more formal than the casual Southern friendliness I was used to. We did a brief interview about the Carter Center’s new program, which frankly didn’t interest me much, and after a while I stood to leave. As I did, he asked—almost shyly—“Would you like to know a little bit about my childhood?” I sat back down.

I heard only the most truncated version of his story that day, but even so, it was difficult to grasp that the child who had experienced such horrors and the man sitting across from me were one and the same. As it happened, Buergenthal had on his bookshelf the English translation of the memoirs of Odd Nansen, the Norwegian author and humanitarian, who had met Buergenthal when they were both prisoners at Sachsenhausen after the evacuation of Auschwitz. Buergenthal showed me the book’s dedication, which was to the millions of victims of the Holocaust—“and especially you, little Tommy.”

“That’s me,” he said, smiling. “Now you know why I’m doing human rights law instead of international business law.”

I wasn’t familiar with either field, but I knew a remarkable witness to history when I met one. Not long after, I invited Buergenthal and his wife, Peggy, over for dinner and cooked my best “company” meal, roast leg of lamb, which they seemed to relish. Years later, Buergenthal confessed that the smell wafting from the kitchen when he and Peggy walked through my door had nearly made him retch: For years after the war, the only meat available had been mutton. Unwittingly, I’d served him something he’d sworn off forever.

That kind of diplomatic fortitude is an occupational requirement for a judge at the ICJ, where the most mundane cases—a complaint from Argentina, say, about pollution from a Uruguayan pulp mill—arrives bristling with international political tensions. The 15 judges on the court, who hail from a variety of backgrounds, must interpret and apply legal precedents that are still relatively new compared to most common law concepts, and do it while maintaining at least the appearance of collegiality. Buergenthal finds this relatively easy: He is unassuming, multilingual (he speaks German, English, Polish, Spanish and a little Italian), knowledgeable about other cultures and always eager to learn more. On days when the ICJ is in session or he is working in his office at the court’s headquarters in The Peace Palace in The Hague, he usually lunches with his fellow judges in their private dining room.

He also brings heavyweight scholarly credentials to the task. He wrote the book on post-war human rights law—literally: His 1973 text International Protection of Human Rights, coauthored with Louis B. Sohn, was the first American casebook on the subject, and paved the way for introducing human rights into law school curricula across the country. Subsequent books, written with George Washington University Law School professors Dinah Shelton and David Stewart, are required reading for students in the field.

Within his field, Buergenthal is famous. But the community of international human rights legal scholars is relatively small, and the field as a whole suffers from an image problem. Most Americans associate the phrase “human rights” with the word “violation.” Bombarded as we are with stories about Abu Ghraib, the murderous fanaticism of the Taliban or tribal warfare in Kenya, it’s easy to conclude that the state of human rights today is a sorry mess.

That would be the short view. The long view is that progress in human rights law since World War II has been “phenomenal,” said Murry and Ida Becker Professor of Law Emeritus Thomas Franck, and he repeated the word for emphasis: “phenomenal.”

One of the lesser-known facts about the Nuremberg War Crimes Trials at the end of World War II is that they specifically excluded acts in which the victims were German citizens, Franck noted. Why? Because at the time, what a government did to its citizens was considered purely a domestic concern. Genocide was viewed in the same way wife-beating used to be: a distasteful matter outsiders were well advised to ignore.

But just as domestic violence is now considered an urgent social problem, “there has been a sea change in the fundamental issue, which is that how a government treats its citizens is no longer considered purely a domestic matter,” Franck said. A formidable body of human rights law has sprouted in a mere half century from a seed planted in the ruins of World War II. Among other things, the charter of the United Nations pledges “international cooperation in…promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” That was followed by the passage of the Convention against Genocide, better known as the Geneva Convention, and the 1948 Universal Declaration of Human Rights.

But what, exactly, are “human rights”? Over the ensuing decades, the exacting work of defining the term and the methods by which its protection would be enforced was left to a variety of U.N.-created commissions and to the bodies that interpreted international conventions, such as those barring torture or race discrimination.Another body of law evolved within the framework of agencies like the U.N. Educational, Scientific and Cultural Organization (UNESCO) or the International Labor Organization, both of which incorporate human rights protections into their charter.

World events also played a role: The bloody civil wars that erupted in the 1990s in Yugoslavia and Rwanda spawned tribunals to try individuals charged with crimes against humanity, genocide and war crimes (the International Criminal Tribunal for the former Yugoslavia, for instance). The credibility those tribunals established led, in turn,to the creation of the International Criminal Court in 2002. Over the same period, three regional human rights judicial systems were evolving: the European Court of Human Rights (established in 1953), IACHR (1979), and the African Court on Human and Peoples’ Rights (2006).

Buergenthal’s major contribution has been in Latin America. The United States is not a party to the convention that created the IACHR, but Costa Rica is. That nation nominated Buergenthal, who had already established himself as an expert in regional human rights tribunals, and his U.S. nationality helped boost the fledgling institution’s credibility.

Credibility is no longer an issue. The IACHR has established an extensive body of case law dealing with the enforcement of human rights in Latin America, on issues ranging from state censorship to violent political repression. It was the first international tribunal to hold a state financially liable for waging a campaign of “forced disappearances” against its political opponents. In that 1988 ruling, the court ordered the government of Honduras to pay restitution to the families of the victims during that country’s civil war earlier in the decade. The ruling was itself remarkable; even more remarkably, the government of Honduras complied.

Since then, IACHR case law has taken root in the constitutions of more than 20 countries in Latin America. The result has been a dramatic increase in recent years in the number of human rights cases initiated by governments themselves against the actions of previous regimes. Case in point: the 1998 detention of General Augusto Pinochet, the former Chilean dictator, in London, and his subsequent prosecution on charges of systematic human rights abuses during his 16-year rule. Since then, similar cases have been brought in Mexico, Uruguay, Brazil and Peru, marking a radical shift toward accountability in a part of the world with a long history of repressive military dictatorships.

“When I came to Latin America, you couldn’t really even talk about human rights,” Buergenthal said, and it’s clear from the frequency with which the subject of Latin America comes up in conversation that he regards his tenure on the IACHR as one of the most satisfying periods of his career. Though it would be hard to single out Buergenthal’s single most important contribution to human rights law, his IACHR work would be at or near the top, colleagues say. “He’s had a role in improving the well-being of an awful lot of people,” said GWU Law Professor Sean Murphy. Human rights law may be an esoteric topic to most people in the United States, “but in Latin America, it’s in the papers every day.”

The Immigrant Becomes a Citizen

Buergenthal arrived in this country in 1951 aboard a ship crowded with European refugees, carrying one suitcase and a smelly $50 bill in his shoe—a 17-year-old high school student whose years of missed elementary school education had been only partially remedied by private tutoring. He lived with an aunt and uncle in Paterson, N.J., and, despite his initial handicaps, graduated in the top quarter of his class. After high school, he accepted a scholarship to Bethany College, a small liberal arts college in West Virginia.

In his senior year at Bethany, the school recommended him for a Rhodes Scholarship to study law at Oxford University. After making it through the first selection round, he arrived at the final interview unprepared and babbled aimlessly. That ended his Rhodes prospects, but one of the interviewers was impressed enough to slip him a note advising him to apply to NYU’s Root-Tilden Scholarship Program. Buergenthal did, and not only won a scholarship, but also a stipend covering room, board and books. The stipend, Buergenthal said, made all the difference: Even with an academic scholarship, he simply did not have any money to live on. “Without it, I wouldn’t have been able to go to law school,” he said.Buergenthal recalls his first year of law school as a tough academic transition, though it was eased by life in Greenwich Village, in those days a small town that just happened to be in the middle of a busy metropolis. He roomed at Hayden Hall with Alan Norris, now a senior judge of the U.S. Court of Appeals for the Sixth Circuit in Columbus, Ohio. Norris, who is still a close friend, recalled that he and Buergenthal had little in common in terms of politics, but his roommate cheerfully tolerated the oversized picture of Republican Senator Robert Taft that Norris hung in their room.

Buergenthal’s fellow law students remember him as friendly, but no party animal. “He never went out with the boys drinking, but he always had time for an event,” says John Blyth, a New York real estate lawyer who met Buergenthal when one of their professors seated the incoming students in alphabetical order. And though Buergenthal never made much of it, “after a while everybody knew about his background in the camps,” Blyth said. “Nobody ever said much about it.”

In his third year at NYU, Buergenthal married Dorothy Coleman, who had been a fellow student at Bethany College. Over the next 19 years, the couple raised three sons while Buergenthal pursued an academic career that took him to the University of Texas as well as American, Emory and George Washington universities. His marriage to Coleman ended in 1981. Two years later, he married Peggy Bell, a Peruvian-born conference interpreter.

Aside from his rocky introduction to law school, Buergenthal said, he has warm memories of his time at NYU—in particular, of Robert McKay, the constitutional law scholar who would later become dean. “My best friends to this day are fellow Root-Tilden students who also lived in Hayden Hall,” he said. His association with the school continues: The international law program that has developed since Buergenthal’s days now sends students each year to work as interns at the ICJ.

If he were a baseball umpire, Buergenthal would be described as having a consistently narrow strike zone. He goes where he thinks the law goes, even when U.S. foreign policy and/or its military and political strategies go another way—that far, and not an inch further. His circumspection is partly a product of his history, says Sean Murphy: “He is sensitive to the perception that because of his Holocaust experiences there might be some who would question whether he could be impartial.”

Buergenthal’s judicial perspective is often invoked in procedural terms. In 2003, for instance, a majority of the court ruled that the United States illegally invoked a national security rationale for destroying three offshore oil platforms owned by Iran in 1987 and 1988. Buergenthal differed—not because he sided with the U.S. on the merits, but because in his view the court lacked jurisdiction to address the issue. The same year (2003 was notable for the number of controversial ICJ cases) the U.N. General Assembly asked the ICJ for an advisory opinion on whether Israel was justified in erecting a wall along the Green Line in occupied Palestinian territory on the West Bank. In a 14-1 ruling, the ICJ held that Israel was not, with Buergenthal as the holdout.

But his opinion was not exactly pro-Israel. Instead, he argued that the ICJ should have stayed out of the dispute altogether because the evidence submitted to it by the General Assembly glossed over the history of rocket and mortar attacks on Israel launched from the Palestinian territories. Then he made an even finer distinction: Even assuming that the court had ample evidence before it that Israeli citizens were victims of Palestinian rocket attacks, “a state which is the victim of terrorism may not defend itself against this scourge by resorting to measures international law prohibits.” A careful weighing of Israel’s security needs versus the rights of the Palestinian people along each section of the wall would be needed, and might well show that some sections violated international law while others did not.

“He has convinced the invisible college of international law that he really does care about the law,” said Franck, who has been a friend and colleague for 40 years. “He’s understated, he’s relatively quiet and unassuming, he’s made it absolutely clear that he calls the shots as he sees them. He never tries to bully or dominate or wave a big stick…. When the law coincides with [what] the United States [wants], he will call it that way, but if the law doesn’t support what the United States wants, he’ll go with the law, and everybody knows it. It gives him a kind of clout.”

In the Israeli wall case, Buergenthal implicitly criticized his colleagues for ignoring certain facts to fit their ruling when he wrote that the humanitarian needs of the Palestinian people would have been better served if the ICJ majority had taken a complete factual record into account, “for that would have given the Opinion the credibility I believe it lacks.”

Yet neither judicial reticence nor artful phrasing can conceal Buergenthal’s profound differences with the Bush administration’s approach to international law and human rights. In 2003, he joined a unanimous ICJ ruling that said the U.S. violated an international treaty by not telling 51 Mexican citizens held on death row in U.S. state prisons that they had the right to seek legal help from their government. The Bush administration demonstrated its displeasure by withdrawing from the convention under which it had agreed to accept ICJ jurisdiction. Even so, President Bush ordered state courts to comply with the ICJ ruling. On March 25, though, the Supreme Court ruled 6-3 that Bush’s order had exceeded the authority of the executive branch. Unless Congress explicitly said as much, the majority ruled, international treaties cannot supersede state law. The case seemed over—but in June, Mexico asked the ICJ to temporarily halt Texas’ execution plans. In response, the ICJ asked the U.S. to “take all measures” necessary to delay the executions while it considered the request. But on August 5, Texas proceeded with the first execution.

In an era when political differences often devolve into personal attacks, it’s worth noting that people who vehemently disagree with Buergenthal’s views—and there are many—confine their attacks to his opinions. A recent post on a blog devoted to ICJ matters, for instance, was scathingly critical of an ICJ opinion “written by your friend and mine, Tom Buergenthal.” Still, conservative animus to Buergenthal’s views runs deep. He was nominated to the ICJ by the outgoing Clinton administration to fill out the unexpired term of his predecessor, then renominated in 2006 by the Bush administration. But that appearance of bipartisan support is deceiving. Conservatives in the State Department were outraged by Buergenthal’s rulings in the oil platforms case and by his less-than-vigorous dissent in the Israeli wall case.

“The ICJ in my view has gone out of its way to find actions in violation of international law,” said Edwin Williamson, a former legal adviser to the State Department under the administration of President George H.W. Bush. U.S. judges nominated to the ICJ are vetted by the State Department and approved by the president before their names are forwarded to the U.N. General Assembly, where approval is usually pro forma. Buergenthal’s renomination might not have made it that far if not for the support of former Secretary of State Colin Powell, who argued that he was both qualified and electable, an important consideration at a time when relations between the United States and the United Nations were at a low point over the war in Iraq.

Even then, the Bush administration may have felt it had no choice but to renominate him. ICJ procedures also say that judges can be nominated by any ICJ member country; Buergenthal won the support of a record number of 32 nations. “He would have been elected anyway,” Franck said. “And to have been elected anyway as the American judge on the court, without having the nomination of the United States, would not have been very good politics.”

What the State Department didn’t know, said one source who asked for anonymity, was that Buergenthal would not have accepted the appointment without the backing of his own country. As critical as he is of U.S. foreign policy under the Bush administration—it has “totally destroyed our credibility on human rights,” he said—Buergenthal takes his U.S. citizenship very seriously. Classmate John Blyth recalls that Buergenthal became a citizen while the two of them were at NYU. On the next election day, Blyth said, “the polls opened at 6:00 a.m., and he was there at a quarter to six. And he was the first to vote.”

Remembering the Holocaust

On an unusually springlike evening last February, I went with the Buergenthals to a reception at the Israeli embassy in The Hague. It was given by Ambassador Harry Kney-Tal and his wife, Nili, in honor of Israeli writer Aharon Appelfeld, whose latest book had just been published in Holland. The three of us squeezed into seats near the back of the room as Appelfeld—a balding, diminutive man dressed completely in black—kept the crowd rapt with tales of his own youth during the Holocaust.

As the reception was breaking up, Peggy urged her husband to introduce himself. Peggy grew up in a bilingual household in Peru, and speaks with a charming accent that, to my ears, sounds like Zsa Zsa Gabor’s. (“No,” Buergenthal corrected me when I told him this. “Eva Gabor. She was the one I always had a crush on.”) Now “Eva” was doing a wifely full-court press. “You must talk to him,” she said. “You must tell him about your book.”

“No,” Buergenthal demurred. “There are so many of these books, Peggy.” Just then, Nili Kney-Tal came up and put her hand on Buergenthal’s arm. “I so wish you had asked a question!” she exclaimed, and Buergenthal shrugged, smiling. He seemed slightly embarrassed. But after a few moments, he edged his way through the dense crowd around Appelfeld, and these two children of theHolocaust had a brief chat out of our earshot.

“What did you talk about? Are you going to send him a copy of your book?” Peggy asked excitedly as we were putting on our coats in the foyer. “Oh, I don’t know,” Buergenthal muttered. Peggy gave me a look as if to say: husbands.

The incident illustrates something that has bedeviled Buergenthal for much of his life. While he has always felt a strong urge to tell his story—he showed Blyth an early draft when they were law students, and he mentioned his desire to write his memoirs on the day I met him—it’s been painfully difficult for him to find his voice. For one thing, he had doubts about his writing ability. His youngest son, Alan, 40, a lawyer who works for a health care company in Columbus, Ohio, regards his father as “a great legal author” whose logical presentation is “always a pleasure to read.” But narrative prose is a very different genre.

“As one whose prior writing experience has been limited to law books and legal articles, I found writing this book very difficult, and not merely because of the subject,” he wrote me in an email last fall. “As a result I am quite insecure about the quality of the book, that is, whether it conveys what I wanted to convey.”

Then there are the comparisons that will inevitably be made between Ein Glückskind and Night. Though they were at Auschwitz at the same time, Buergenthal and Weisel first met several years ago at an event at the U.S. Holocaust Museum in Washington, D.C. Their accounts of the Death March are strikingly similar.

Otherwise, the books could not be more different. Night is a primal howl of anguish written when Weisel was only 30 and his memories still raw. Written in 2006, Ein Glückskind is the work of a 72-year-old man looking back over half a century. It is less a memoir of the Holocaust than it is the story of how a child’s moral intelligence was refined in the cauldron of that horrifying event.

It also has a broader scope. Like Weisel, Buergenthal describes concentration camps that were “laboratories for the survival of the brutish.” Unlike Weisel, he also describes generosity and acts of heroism. Weisel asked how God could have allowed such things to happen; Buergenthal asks how people could have allowed it. “What is it in the human character that gives some individuals the moral strength not to sacrifice their decency,” he writes, while others “become murderously ruthless?” How could such brutality be inflicted by such ordinary people—men who would “go home in the evening to their families, wash their hands before sitting down to dinner as if what they had been doing was a job like any other”?

A reader might hope that age and wisdom have given Buergenthal insights that eluded the youthful Weisel, but not so. Buergenthal seems as stymied by these questions as Weisel—more so, in fact, since the intervening years have shown too clearly that the Holocaust was hardly a singular event. As a teacher or a judge, he can be exacting, a stickler for the precise word, the correct phrase. But he has no answer to the mystery of human evil, and he is uncharacteristically inarticulate when it comes to exploring the emotional landscape of his experiences. Ein Glückskind is remarkable not just for the dramatic events Buergenthal has lived through, but also for the number of questions it cannot answer.

“The insanity of it all is hard to fathom,” he writes, and the book is peppered with a similar kind of detached bewilderment: “Generalizations about the Holocaust, about German guilt or about what Germans knew or did not know, do not help us understand the forces that produced one of the world’s greatest tragedies.” And: “I have often wondered why or how I managed to survive the camps.”

Buergenthal says that he wept at times while he was writing Ein Glückskind—but overall, the book keeps the reader at arm’s length from the events it portrays, and there is a sense that the psychological armor that helped protect the child is now a hindrance to the adult writer. Perhaps it’s unavoidable. In one chilling passage, he recounts how he used to sleep in a barracks so close to the gas chambers at Auschwitz that his sleep was often interrupted by the screams of the people being forced inside. After a while, he found a way to cope—by what psychologists call “lucid dreaming.” Hearing the screams, he would say to himself in his dream, “This is only a nightmare, there is nothing to be afraid of.”

Yet the person who emerges from the pages of Ein Glückskind is not a tortured soul, but an irrepressible, mischief-making boy. During his years in Kielce, Buergenthal and his friends would play tricks on the peasant women who tilled the land in the vacant lot behind their apartment building: They would hide until the women stopped to urinate in the field, standing in their long skirts with their legs spread apart. At just the right moment, the boys would yell or bang on a pot to startle the women in midstream, so to speak. Then the children would run, laughing, pursued by Polish curses.

As an adult, Buergenthal’s brand of humor tends toward the droll understatement. Norris, his old roommate, recalls that every man at NYU in the 1950s was draft bait—except for Buergenthal, who was exempted because he had lost two toes to frostbite during the Death March. Every year, Buergenthal would get a notice from the draft board inquiring about his physical fitness; every year, he would write back: “My toes have not yet grown back.” Blyth recalls a party where Buergenthal gave an impromptu performance of the Polish national anthem. He knows how to have fun: Buergenthal’s former colleague Murphy recalls a dinner at his home when Buergenthal wowed Murphy’s children with his prowess at ping-pong.

At the same time, he is a deeply serious person. Alan jokingly says that “the only way he truly let us down as kids” was by nixing a family trip to Disney World, which his father thought was a waste of time. Robert, who is 45 and works as a senior counsel in the Justice Reform section of the World Bank in Washington, D.C., remembers that at family dinner “every child reported on his schoolwork and there was always an issue to discuss.”

Buergenthal and his sons have a running argument about how much he told them about his childhood. Buergenthal says his children never showed much interest. His sons emphatically differ, but say what they learned came in bits and pieces. “If you asked questions, he’d always answer,” Alan said. At other times, information would emerge in odd ways; once, Robert said, his father told him that he’d been unable to carry Robert around as a baby because of a back injury he suffered during a beating in the camps. Buergenthal spoke far more easily about his grandparents, murdered by the Nazis in 1942, or his mother, who remarried after the war and lived in Italy, with frequent visits to this country, until she died in 1991.

When Robert was in junior high school, he read Night. “I told Pop it sounded a lot like his stories, and I asked him to read it,” Robert said. The answer was no. To this day, his father avoids Holocaust literature and movies depicting the period. When Slaughterhouse Five became a movie in 1972, Robert remembers, his parents came home from the theater early; his father could not bear to watch it.

“Until this book, no matter what he may say, he never walked us through his history,” said Robert. And yet the proverbial elephant was always in the room: “Everything about him was shaped by the war or the Holocaust.”

A Sustaining Faith in the Law

One day in the fall of 1944, the prisoners at Auschwitz were called to assemble for one of the many “selections” the Nazis performed to get rid of prisoners unfit for work. One by one, the prisoners walked before a panel of doctors—a group which may have included Mengele himself, though Buergenthal will never know for sure; he was too terrified to look up. He followed his father in the line, looking for an escape route. At the head of the line, the doctors ordered Mundek Buergenthal to go left and his 10-year-old son to go right. Mundek grabbed his son, but a guard tore the boy away while another kicked the elder Buergenthal out the barracks door. It was the son’s last glimpse of his father.

Buergenthal was taken to another barracks, where all the other prisoners were old, sick or succumbing to starvation—clearly, destined for the gas chamber. So was he; children were considered unfit for manual labor, and it was a miracle he had survived this far. Three times over the next few hours, Buergenthal managed to escape through the back door of the barracks; three times, for reasons he still finds unfathomable, the other prisoners alerted the guards that he was escaping. Finally—baffled, angry, overcome with grief and fear—he sat down against the wall in a corner.

Until then, I had been gripped with fear, fear of dying. But then something most unusual happened. Slowly, very slowly, my fear and anxiety faded away….An inner warmth streamed through my body. I was at peace, my fear had vanished and I was no longer afraid of dying.

“I can’t explain it,” he said to me.

We were sitting in his office in The Hague, located in a modern building next door to the ornate 19th-century edifice where the court holds its hearings. Through a window left slightly open to the springlike air, I heard a distant hum of traffic; a pair of Nile geese floated on a pond outside.

Was it a spiritual experience? I pressed. “No,” he said. His family was never observant, and his experiences in the war eliminated any vestige of a belief in the Divine. The best way he can describe that moment was that it was the intense realization that “death is always just a moment away.” Which, in a way, is a spiritual epiphany—but the moment passed, and in the years since he has never totally recaptured it.

Alan Norris has told him that it was more than just cosmic coincidence that on the day Buergenthal was chosen for the gas chamber, the ever-efficient Nazis did not have enough prisoners to justify firing up the crematorium—just as it was more than coincidence that a Polish camp doctor later secretly altered his identity card, saving his life. Buergenthal disagrees. His survival, he says, was simply luck. “I admire people who are religious—well, not the extremes—but I don’t believe in a personal God the way some people do,” he said. “I wish I could. It would give me strength.”

Yet, in a way, the absence of one kind of faith has left room for another: a faith in the power of law. The law is no panacea, he concedes; it has never prevented terrible things. But it can at least be a “no trespassing” sign posted at the edge of the abyss. There are reasons to think this is a useless gesture: Cambodia, Rwanda, Bosnia, Darfur. But, Buergenthal points out, the same decades that brought us those events have also brought the end of apartheid, the fall of the Berlin Wall, the replacement of autocratic regimes with democratically elected governments in Latin America, a proliferation of international tribunals and a growing number of nations willing to comply with their rulings.

On a trip to Columbus last year, Alan told me, his father was looking through some family photos with Alan’s seven-year-old daughter, Ruth, and explaining to her how so many of their relatives had died, why their extended family was so small. The next day, Alan said, Ruth went to her first-grade class “and she told what she could about what happened to my father, and the kids said, ‘Oh, you’re lying, people don’t do things like that for no reason.’”

But people have, and probably will again. Meanwhile, Buergenthal shows up for work every day at a court with a steadily growing caseload. The years are passing, and he would like to spend more time with his grandchildren. But his work is not finished; it may never be. Building a jurisprudence of human rights is like building the Taj Mahal, or the pyramids of ancient Egypt: The goal is ridiculously ambitious, the work takes decades, and the craftsmen labor in anonymity. Even then, the results are imperfect, and susceptible to vandals and the passage of time.

What’s most amazing about those wonders, though, isn’t how well they have survived. The most amazing thing is that anyone ever thought of building them in the first place.

—Freelance journalist Tracy Thompson wrote The Ghost in the House: Motherhood, Raising Children and Struggling with Depression (HarperCollins, 2006). Recently she contributed to the anthology The Maternal Is Political (Seal Press, 2008).

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2008 Features

2008 Home

His lead client, a candidate for Chicago’s city council named Frank McNeil, was on the stand testifying about an at-large election system that essentially worked to keep blacks from obtaining office. The opposing lawyer seemed to find an opening that could spell trouble.

“Is it true, Mr. McNeil,” the lawyer asked, “that the real reason you’re running for office is you want pork to be distributed to your constituency?”

McNeil responded confidently: “If there’s pork to go around, I want my people to get some, too.”

That pithy, off-the-cuff testimony provided an epiphany of sorts for Issacharoff. It disrupted how he thought about election law and how to organize democratic politics. It was the end result that mattered more in these issues, he thought. The courts should perhaps confine themselves mostly to making sure the political process and institutions were open and responsive—not parse each issue through the constitutional prism of individual rights. In short, Issacharoff said, McNeil’s aphorism was sounding right: Let everyone have an equal seat at the table—and the pork would be distributed just fine.

This spare notion would develop into a distinct field of law, known as the Law of Democracy, that attempts to find a unified theory of election law. It was crafted by Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law (below, left), his colleague Richard Pildes, Sudler Family Professor of Constitutional Law (below, right), and Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School. Their work culminated in a book, first published in 1998, The Law of Democracy: Legal Structure of the Political Process. More than a mere textbook about election law, it was, as one reviewer observed, a statement about democracy in America, including an unusual assemblage of case studies, political theory, political philosophy and American history. They aimed to shape a chaotic set of legal positions into a level playing field and let the politicians play ball.

In just a decade, their ideas implanted themselves in much of the legal community, and electrified law and political science professors across the country. Owen Fiss, the revered constitutional law and civil procedure legal scholar and professor at Yale Law School, who had taught Issacharoff and Karlan, recalls: “It was just the right book at the right time by the right people.” (Fiss remembers how he was on the reviewing committee of the publisher, Foundation Press, when they short-circuited their usual lengthy scrutiny for this book proposal, greenlighting it immediately.) At least half of the country’s law schools now teach a Law of Democracy course. At NYU, Pildes and Issacharoff alternate each year in teaching the course to second- and third-year students, sometimes bringing in speakers, such as the top election lawyers for the Democratic and Republican parties. And in the fall of 2007, Issacharoff and Pildes joined Pasquale Pasquino, a visiting professor of law at the Hauser Global Law School Program, in presenting a colloquium that focused on democracy abroad, Constitutional Democracies.

The course is “wildly popular” with today’s students, says Yale Law School Professor Heather Gerken. “It’s like teaching sex, drugs and rock ’n roll,” she says. “It’s taking all of the pristine principles of constitutional law, like equal protection and First Amendment, and bringing them to the down-and-dirty world of politics.”

Indeed, not many professors sought to teach courses about electoral matters until Issacharoff, Karlan and Pildes’s ideas “revolutionized what was a pretty boring and tedious field before,” says Dennis Thompson, a political philosophy and ethics professor at Harvard’s Kennedy School of Government. But in the last decade, Karlan says that a “huge number of people” entered the field, impelled by the textbook and the 2000 Bush v. Gore election debacle. Gerken recalls that legal theorists such as University of Chicago Law Professor Cass Sunstein and Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit “suddenly started writing about election law, this in a field they hadn’t heard of five years before!” Among the professors who used the trio’s early teaching materials: Barack Obama, while an adjunct at the University of Chicago Law School.

Issacharoff, Karlan and Pildes are now recognized as the founding parents of and leading authorities on this fresh view of election law, having converted many scholars to their “structuralist” camp rather than the “individual rights” school. They have been recognized accordingly. Issacharoff, who was lured to NYU in 2005 from Columbia Law, was selected to deliver the Herbert Hart Lecture in May at the University of Oxford, an especially distinct honor in that the lecture is normally presented by a specialist in legal philosophy. In the span of a few weeks in April, Pildes was awarded a highly coveted Guggenheim Fellowship and elected to the American Academy of Arts and Sciences. A frequent network television commentator on election matters, he was nominated for an Emmy as part of the NBC team covering the 2000 election. In 2004, he wrote the prestigious Harvard Law Review constitutional foreword. And Pildes can claim to have conceived two election-related ideas that were later incorporated as doctrine by the Supreme Court—two more than most law professors (more on those later).

Election Law’s Oscar and Felix

For two guys who work together so well, Issacharoff and Pildes are a kind of odd couple of the academic legal world. Issacharoff greets a visitor at his sprawling Upper West Side apartment one winter day, his salt-and-pepper hair slightly askew, dressed in gray sweat pants, blue T-shirt and Asics sneakers, looking as if he’s on his way to a pickup basketball game, which he plays regularly. Pildes, however, schedules his meeting in his fifth-floor office crammed with law review articles and student papers. He is neat and trim, looking like the former competitive runner he was at his Evanston, Illinois high school, and dressed in a pressed green shirt and brown corduroy pants.

Issacharoff answers questions with little hesitation, while Pildes pauses to formulate his responses. The latter says, “I’m much more of the tortured academic, seeing complexity everywhere, more interested in exploring issues than pushing the bottom line very hard. I think Sam’s much more confident, bottom-line-oriented.” That said, Pildes has no hesitation in calling a couple of his friend’s ideas “wacky” and “off the deep end”—which Issacharoff shrugs off as part of academic give-and-take.

They took differing paths, too, to arrive at the same conceptual place. Pildes’s was more theoretical. After graduating from Harvard Law in 1983, he clerked for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and then for Justice Thurgood Marshall on the Supreme Court. (Pildes self-deprecatingly shares the story of how, when he went to Marshall’s office to say goodbye at the end of his clerkship, the justice, a notably moody character, walked past him and said to his secretary’s pleadings, “What’s he want me to do, kiss him on the fanny?”) Pildes practiced a couple of years at Boston’s Foley, Hoag & Eliot law firm before joining Michigan’s law faculty in 1988, where he stayed until 2000, when he moved to NYU’s law school. True to his Hamlet-like decision-making, it took him two years to make the decision to join NYU, and, more recently, two years to decide to turn down Harvard Law to stay.

Issacharoff, by contrast, had rolled up his shirtsleeves working as a voting rights lawyer. He was born in Buenos Aires, Argentina, moving to the United States with his family when he was five and eventually settling in Manhattan. He graduated from SUNY Binghamton in 1975, having majored in history, and spent a year studying at the Université de Paris. At Yale Law School, Fiss recalls, Issacharoff “disagreed with almost everything I had to say and yet I hired him as a research assistant and learned from him ever since.”

After graduating in 1983, Issacharoff focused on minority voting rights and labor law at firms and organizations including the Lawyers’ Committee for Civil Rights Under Law and the Lawyers’ Committee for International Human Rights. As a law student, he represented clerical employees in front of the National Labor Relations Board in their successful effort to unionize. In 1989, he joined the faculty at the University of Texas at Austin School of Law.

It was at Texas, in 1992, that Issacharoff got an idea (inspired by Georgetown University Law School Dean Alexander Aleinikoff) to organize a conference on government, constitutional law and politics. Among the attendees was Pildes, who had studied electoral topics for years but was, he relates, “groping for a specific way into those issues that seemed fresh, that hadn’t been explored in lots of depth.” Also there was Karlan, then teaching at the University of Virginia School of Law. She had gone to Yale Law School at the same time as Issacharoff, and had met Pildes while both of them were clerking at the Supreme Court, she for Justice Harry Blackmun.

Issacharoff recalls that it became apparent at the conference that they were exploring a new and distinct area of the law, though never stated so explicitly. Pushed by Aleinikoff again, they decided that a good way to organize the still-inchoate Law of Democracy idea was to gather case material that would be used for teaching—material that was to become the core of their textbook.

Their timing was exquisite. Democracy and how it should be structured were hot in the 1990s, giving them plenty to chew over. In a series of cases, the Supreme Court raised the visibility of what democracy meant by increasingly applying the Constitution to matters involving redistricting, term limits, campaign financing, and the like. The world, meanwhile, was going through a frenzy of democratization, from the former Soviet Union to Latin America, South Africa and parts of the Middle East. More new democracies were formed than in any comparable period, Pildes points out, raising real-life questions about how to design democratic institutions.

“All of this kept pushing these issues onto the agenda in ways that were not thought about much before,” Pildes says.

The authors were drawn at first to the theories of John Hart Ely and his groundbreaking 1980s book, Democracy and Distrust, according to Issacharoff. Ely worried about overreaching judicial activism, citing decisions like Roe v. Wade, and he tended to put more emphasis on the process of lawmaking rather than on the theory. This was an idea they thought could be carried over to the world of democratic politics: Courts should protect the process or structure of politics—making sure no one was shut out before the first ballot is cast—rather than wade in too heavily to determine what is a “good society.”

A more conservative view, to be sure, but more transformative to society, Issacharoff contends: “More has happened to advance the cause of black people as a result of making sure there is active black representation in Congress and legislatures than as a result of the more aggressive court cases that have sought to deal with things like poverty.”

Issacharoff churned out a series of papers throughout the 1990s as he delved into the topic. In a 1993 Texas Law Review piece (“Judging Politics: The Elusive Quest for Judicial Review of Political Fairness”), for example, he challenged the conventional wisdom that gerrymandering corrects itself. In that view, political parties that attempted to control as many districts as possible risked losing, should a small percentage of voters shift allegiances. In 1995, he set the stage for his argument that the Constitution was limited in analyzing voting rights disputes (“Groups and the Right to Vote,” Emory Law Journal, and “Supreme Court Destabilization of SingleMember Districts,” University of Chicago Legal Forum).

For his part, Pildes explored general constitutional and legal theory in great depth. In a series of articles, he argued against the idea that constitutional rights give individuals absolute freedom. Instead, he proposed that rights should be seen as regulating government actions, limiting the kinds of reasons for which government can act (“Why Rights Are not Trumps: Social Meanings, Expressive Harms, and Constitutionalism,” Journal of Legal Studies,1998). He also turned to less theoretical areas, studying cumulative voting systems in Alabama in a 1995 paper, “Cumulative Voting in the United States,” in the University of Chicago Legal Forum.

A Field of Law?

Defining the Law of Democracy is no easy matter; even Pildes demurred. Yale’s Owen Fiss, who himself teaches a Law of Democracy course, wonders aloud whether the professors have yet to find an “autonomous set of principles” governing election law that would properly constitute a law of democracy, even as he’s convinced that it exists. “The work remains to be done, and that’s the great challenge,” he says.

But Pildes and Issacharoff argue that American democratic institutions aren’t fixed in stone, that they are constructed along the way and that self-interested politicians require policing to make sure they don’t gum up the works. “All the issues we identified—like campaign financing, districting—share a common core around the basic questions of what is the point of democracy, what are the objectives of democracy, what are the tradeoffs when designing institutions,” says Pildes.

And as the professors saw it, the Supreme Court certainly wasn’t doing a great job in sorting it all out. The courts’ tendency to apply constitutional law and abstract principles of individual rights to resolve electoral disputes was, they said, mostly a mess. Without a unifying vision, courts created a mishmash of cramped, sometimes illogical rulings.

“Cases that involved campaign finance were treated as First Amendment cases,” says Issacharoff. “Cases that involved redistricting, like Baker v. Carr, would be treated as equal protection.” And the courts threw up their hands in futility when it came to cases testing the power of political parties. “[Individual rights] is an abstract, philosophical way of thinking about these issues that just doesn’t have any traction for dealing with the real-world problems that this area addresses,” says Pildes.

It was better, they said, to think more pragmatically about these matters—meaning to consider the consequences when resolving legal issues surrounding democratic politics. And in weighing those questions, Issacharoff and Pildes suggested separately, courts should view politics not as a clash of states vs. constitutional individual rights, but as a competitive marketplace.

They unleashed this metaphor in February 1998 in “Politics as Markets: Partisan Lockups of the Democratic Process,” published in the Stanford Law Review. Does a law limiting campaign contributions, for example, lead to a robust marketplace of candidates—or does it lock out potential aspirants? By viewing the issue that way, it was no longer a fuzzy First Amendment case about restrictions on political speech. As Burt Neuborne, Inez Milholland Professor of Civil Liberties and legal director of the Brennan Center for Justice, notes, the professors were asking the overlooked yet critical question in election matters: “Is it good for democracy?” Or as Pildes puts it: “I think the fundamental question ought to be, Is this rule a means of stifling political competition or not?”

The backbone to their marketplace approach is this: The biggest threat to a democracy is the tendency for incumbents to lock up the political process so they can’t be effectively challenged. “Inherent authoritarianism,” Pildes calls it.

“The term ‘lockup’ was deliberately chosen,” says Issacharoff, who spent a year at Columbia studying corporate governance theory, “because it’s a term of art in corporate governance law—where management makes it impossible to dislodge it. We were trying to say the same thing happens in the public domain, for example, difficulty in getting a third party at the ballot, difficulty in challenging incumbents in a primary.”

When should the judiciary step in to unlock the door? Judges, they said, should aggressively scrutinize laws such as gerrymandering that appear to entrench and protect politicians. Otherwise, when laws are only reshuffling democratic rule-making—as in those involving primaries, for example, that don’t entrench one set of insiders over another—they should back off. Of course, figuring out where to draw the line here is no easy trick, Pildes says, acknowledging but rejecting critics who say their model will invite an overly aggressive judiciary. He compares the role of courts to a cancer drug, targeting pathology in the democratic system but hopefully not destroying healthy tissue.

The article set off a firestorm. It was, so it seemed, attacking the sacrosanct paradigm of individual rights and substituting a managerial concept, using business school words like antitrust and lockup. Critics said it wasn’t asking enough about what is right or moral. Pildes notes that many scholars “don’t want to think about rights necessarily having trade-offs against other objectives. You know, rights are rights.”

Some very prominent academics fall in this camp. Legal philosopher Ronald Dworkin, while a huge admirer of the two professors, notes that the trend to employ the economic model in legal analysis can indeed be overused. Trying to discern commonality between the wants of voters and consumers can be misleading, he says. Harvard’s Thompson, who makes extensive use of the textbook, likewise cautions: “In the market, if we don’t like a product we can buy a different product. In an election, the competition ends in a decision and we have to buy the product—no matter how competitive it is.”

Neuborne, despite his left-leaning political credentials as a former ACLU legal director, says he wasn’t bothered by the marketplace metaphor. “There’s nothing inherently rightwing about viewing things as markets,” he says. “When there’s market failure in democracy, viewing it as a market is a left-wing thing because it means you have to step in and correct the market.”

Today, says Issacharoff, the politics as marketplace idea is mostly considered conventional wisdom. “We went from being, ‘This is outlandish and ridiculous,’ to ‘This is just old stuff,’” he says, laughing. “I wanted a brief moment when we were ‘sober and thoughtful.’”

Bush v. Gore

If there was ever a time when an ivory tower concept suddenly became relevant to the popular masses, it was the 2000 U.S. presidential election. “Florida 2000 was a perfect storm,” says Issacharoff. The combination of creaking and dysfunctional election machinery in Florida; a form of review that was “nastily partisan”; the inconsistency between the popular and the electoral college votes, and a confident Supreme Court, unafraid of inserting itself into areas given to other branches of government, made election law the top story of every night’s news broadcast. It was also a perfect storm for Issacharoff, Pildes and Karlan to enter the media whirlwind with numerous television appearances. They considered turning their commentary and writings into a popular book on the election that could have elevated their name- and face-recognition in the mass media along with well-known legal experts such as Alan Dershowitz and Jeffrey Toobin. But eventually they decided to write an evenhanded casebook for students and professors called When Elections Go Bad: The Law of Democracy and the Presidential Election of 2000.

Four years after Bush v. Gore, Pildes found himself in the middle of what he calls “Bush v. Gore 2.” He was representing Puerto Rico’s election commission in an eerily similar election dispute that would determine the next governor of the commonwealth. His opponent: Theodore Olson, who was Bush’s lawyer in Florida. The controversy again was over whether certain ballots were valid. “I had this surreal experience of arguing against Ted Olson about what Bush v. Gore means,” Pildes recalls. Olson wanted the courts to intervene to halt a recount and have the ballots thrown out (sound familiar?). Pildes won the case, the ballots were counted and the candidate who benefited, Aníbal Acevedo-Vilá, is the current governor.

Real World Applications

Taught at the Law School by Issacharoff or Pildes since 2002, the upper-level Law of Democracy course starts with issues involving individual political participation—the right to vote, for instance—and then moves on to the role of groups in politics—parties, primary elections and the like. But to some extent, this is a course where the syllabus is ripped from the headlines. Pildes and Issacharoff dive into subjects that are in the news and apply their sometimes-unique perspectives, which are often ripe for debate among their colleagues and even between themselves. This being a particularly engaging presidential election year, there’s no shortage of strong and even clashing opinions.

Voting Rights and Race
The landmark Voting Rights Act of 1965, which prohibited states from adopting policies that disenfranchised African Americans, set up extensive federal oversight of jurisdictions with a history of discriminatory practices. But some 35 years later, Issacharoff and Pildes suggested that federal intervention could be dialed back, because the political process in those states and districts—the marketplace—was now open to minorities. This view, Issacharoff points out, gave integrity to their core argument: Just as courts needed to act when confronting entrenchment, they should back away when the political system was operating fluidly.

That idea came to the fore in the 2003 Supreme Court redistricting case Georgia v. Ashcroft, which Pildes calls the most important decision in a generation on race and political equality. Georgia had a Democratic majority but was trending Republican, so the black Democratic majority put together a deal that slightly diluted the concentration of black majority districts, spreading out votes that would shore up Democratic lawmakers elsewhere. Any diminution of black concentration is a prima facie violation of the Voting Rights Act, however, so the Justice Department objected.

The Court ruled, 5-4, that Georgia’s legislature had the latitude to make the changes. Pildes suggests the Court weighed the case in a pragmatic, process-based way, understanding that blacks had gained political power and thus the Voting Rights Act could be interpreted with more flexibility.

Pildes was able to take special pride in the Court’s reasoning. It explicitly endorsed and cited an idea he had proposed just a year earlier in the North Carolina Law Review. He wrote that because whites were now voting regularly for black candidates, it might no longer be necessary to create a majority black election, as required under the VRA. (Barack Obama is proving the point this year in his ability to attract white voters.)

It was the second time that Pildes’s work turned into court doctrine. In 1993, he and political scientist Richard Niemi of the University of Rochester conceived the notion of “expressive harm” in describing the Supreme Court’s view of the constitutional harm done when designing election districts along racial lines. The idea is that the government can inflict harm not only in concrete ways, but also symbolically through ideas and attitudes it expresses. Creating minority election districts, for example, can send the harmful message that members of the same race always share political views. The notion was subsequently employed by the Supreme Court in cases including Miller v. Johnson in 1995 and Bush v. Vera in 1996, in which the Court ruled that redistricting plans in Georgia and Texas, respectively, were gerrymandered to hurt minority groups.

Following Ashcroft and several other Supreme Court rulings on voting, Issacharoff weighed in with a 2004 piece that also pivoted on the idea that blacks were gaining ground: “Is Section 5 of the Voting Rights Act a Victim of Its Own Success?” Issacharoff’s Columbia Law Review article suggested that African Americans had made such gains in the political establishment that Section 5, which required close federal scrutiny for certain districts, had served its purpose—and in fact might be impeding the nowrobust political process.

Two years later, in 2006, Pildes and Issacharoff testified before Congress when Section 5 was up for renewal. Pildes argued the section ought to be updated to reflect the changed political environment that now allows, for example, black-white political coalitions. “Otherwise, the Act becomes a way of entrenching racial identities and a racially polarized form of politics,” he says. Issacharoff, too, testified that the Act was out of date and voiced concerns that it could be exploited for partisan gain. (Their colleague Karlan disagrees, saying the section is still needed in those local election areas where two strong parties don’t exist.) In the end, however, Congress voted to renew the measure with no changes.

Political Parties
The presidential primary season is an apt real-life lesson for students of the Law of Democracy—and specifically the role of political parties. Notice, says Pildes, how Barack Obama and John McCain generally fared better with open primaries, in which voters were free to choose for which party they want to select their candidate. Hillary Clinton did better when only Democrats were permitted to vote in their closed primaries. With open primaries, we generally tend to get more moderate candidates; close them and we get more extreme candidates.

Pildes’s point: A seemingly small, technical rule governing primaries can have enormous consequences for democracy. So who should set the ground rules when disputes arise involving political parties? Generally, let the politicians fight it out in the public arena, he says. Yet the Supreme Court has been intervening of late, generally barring states from regulating how political parties structure themselves.

In its 2000 decision California Democratic Party v. Jones, for example, the Court ruled California’s open primary system unconstitutional on individual rights grounds—a political party, like a private club, has the right to decide its members and who can vote in its primaries. Pildes says the Court once again was wrong to try to invoke theConstitution to settle a matter that should be subject to the back-and-forth of legislative debate—and one that did not involve entrenching one set of insiders over another. The danger, he says, is that the Court could “freeze into place its own vision of how democracy should function.” Indeed, it’s possible that the Jones decision could make it unconstitutional for states to require parties to let independents vote in their primaries. “That would have far-reaching ramifications for the future of American politics,” he says.

Campaign Finance
As Issacharoff sees it, much to his dismay, today’s law school students are fixated on the need for campaign finance reform—specifically, in favor of public financing. “They are as naïve and myopic as the editorial board of the New York Times on this issue,” he declares. Breaking from liberal orthodoxy, Issacharoff (and Karlan) prefers, in short, that virtually all campaign finance restrictions be thrown out except for those requiring disclosure of contributors. “You raise money any damn way you want,” he says. “The media would expose stuff; I think that’s far better.”

Issacharoff and Karlan described the existing system—which restricts contributions but leaves expenditures wide open—as “taking a starving man to an all-you-can-eat buffet but giving him only a really tiny spoon to eat with.” Their 1999 article in the Texas Law Review, “The Hydraulics of Campaign Finance,” caused a stir with its dim view of campaign finance regulation. Comparing election money to water, they argued that shutting off one avenue only diverts it to another—the unintended consequence problem. Regulate money to political parties and it goes to parallel organizations, like political action groups or independent 527 groups (named for a section of the tax code). “Our view is it’s actually much better if the money goes to the candidate,” says Issacharoff. “Because then somebody running for office is actually accountable.”

If it’s any consolation to students, Pildes thinks Issacharoff and Karlan’s idea is “wacky”; it is closer to Justice Clarence Thomas’s view that the First Amendment’s freedom of speech bars any kind of regulation of campaign contributions. Pildes argues the Supreme Court ought to give room to lawmakers to set rules, given the vigorous public debate on a clearly crucial issue. “The position that the Constitution just cuts that off, and says nothing is permissible in regulating the system, seems to me a very troubling thing in a democracy,” Pildes says. But if legislators make laws that act to entrench themselves, then of course courts should intervene on grounds they are anticompetitive. In any case, Pildes argues that this debate is just playing at the margins until something really radical happens—meaning public financing of elections. But that, he notes, isn’t happening anytime soon.

But Burt Neuborne thinks something radical did happen this year that could have a monumental impact on the campaign finance issue: Barack Obama’s remarkable success in using the Internet to raise vast amounts of money in small increments, an average $91 per person. This form of individual fundraising, if replicated in coming years, Neuborne says, could ultimately negate themproblem of big money’s undue influence on elections. “Technology may solve something that the law couldn’t,” he says.

[SIDEBAR: Neuborne Takes Campaign Financing Reform to the Supreme Court]

Partisan Gerrymandering
After the 2010 census, legislators will sit down to draw the boundaries of state and congressional districts. Lawsuits will inevitably flow, claiming one unfairness or another. Issacharoff thinks the system is absurd. In a 2002 paper called “Gerrymandering and Political Cartels,” Issacharoff suggested that all such plans drawn by insiders are self-evidently unconstitutional. He proposed instead that districting should be taken out of the hands of self-interested incumbent politicians and be placed into an independent commission or even a computer. Many countries, including Great Britain, Canada and Australia, use outsiders for this purpose.

The problem of self-interested districting arises most acutely in bipartisan gerrymandering in which, for instance, incumbent legislators strike deals to put all the Democrats in safe districts and Republicans in others. In New York State, for example, party leaders essentially agree to gerrymander state districts to ensure that Democrats control the Assembly and Republicans, the Senate.

Bringing this system down is tricky. No one is being denied the right to vote, he notes, so it’s hard to claim some individual right has been violated. But Issacharoff says the court should not ask about rights violations, but instead should ask a “process” question: Is it presumptively unconstitutional to give incumbent lawmakers the power to determine electoral arrangements?

Issacharoff concedes his idea to strip lawmakers of districting powers is pushing the boundaries. “Rick has characterized this as an approach that even the Warren Court in its heyday would blanch at,” he says with a grin. To be sure, Pildes generally prefers independent commissions, too. How to get to that goal is another matter. “Sam’s idea that the courts should order this across the country is, to put it charitably, provocative and, to put it in practical terms, completely off the deep end,” he says. It would be far better if popular pressure gave rise to independent commissions, he says, rather than to have it “forced down our throat” by the Supreme Court. On the other hand, Pildes says courts have done “virtually nothing” about partisan gerrymandering—the very essence of politicians locking themselves into power.

Agreeing with Pildes, University Professor Jeremy Waldron, who tends to view electoral issues through a philosophical prism, recommends a system used in his native New Zealand that accommodates the indigenous Maori people, about 10 percent of the population. The problem with ethnic or race-based districting, he says, is “it freezes peoples’ identity or it makes assumptions about peoples’ identity,” he says. In New Zealand, the Maoris are guaranteed an opportunity to vote in specially constructed districts, but every eight years they can select whether to register in the special or a regular district. If not enough Maoris choose the special district, it disappears, and the Maoris are absorbed into the regular district. “This leaves it in the hands of the people concerned,” Waldron says.

Emerging Democracies
Following Bush v. Gore and 9/11, Issacharoff says he and Pildes grew more interested in issues like how to administer a democracy, and how to define and set limits on executive authority. That led them to look abroad. Says Issacharoff, “I realized that I was quite uninformed on how other countries address these issues.”

Issacharoff was not in the dark for long. In a 2007 Harvard Law Review article called “Fragile Democracies,” he explored how democratic countries should deal with serious threats by antidemocratic groups that exploit the electoral arena to push their cause. One need only look at Hitler’s rise using democratic means. And there was plenty to study today—Turkey banning Islamic parties, Israel banning parties that deny the Jewish nature of the state, India removing candidates from office who appealed to religious or ethnic hatreds, and others. In America, courts generally use the “clear and present danger” threshold to weigh government restrictions. Issacharoff suggested that may be too high a bar for less stable countries facing mass threats. Those countries need the ability to crack down on such electoral activity without regard to its imminence. The danger, of course, is a power grab by insiders, and thus he says that his pro-competitive approach “would dictate a great deal of caution.”

Neuborne called the piece a “pragmatic argument for minimalism”—meaning democracies in time of stress could interfere with individual rights, yet they needed to think hard about keeping the change minimal. Still, it was controversial, he says, in even allowing some kinds of abridgments of rights. “I’m an ACLU person, so I dig in and fight,” he says. “But maybe you need somebody like me and, at the same time, Sam, who’s building a position beyond which we won’t move.”

In a book chapter entitled “Identity and Democratic Institutions,” Pildes took a comparative approach, looking at how countries with sharply divided heterogeneous societies—like India, South Africa and Iraq—deal with designing democratic institutions. One common mistake: Designers assume that the conflicts among competing groups are fixed and unchanging, so they set up government in a way that—surprise, surprise—only entrenches those identities. Yet countries and societies are fluid, and the best systems design for that. An obvious example: the United States and federalism, which accommodates regional preferences and changes. In Iraq, designers at least set up a rotating presidency among the three major groups as an interim measure to navigate tension. Interim power-sharing was also done in South Africa after apartheid.

Similar issues of fragile democracies were in the Constitutional Democracies colloquium run by Issacharoff, Pildes and Pasquino. Roughly 30 students heard presentations from speakers including justices from courts in Germany, France and Israel. “It was an important event,” says Pasquino, exposing students to views from justices around the world. He notes that Europe doesn’t have many academics like Issacharoff and Pildes who specialize in election law. The reason, he says, is that in countries like France and Italy, only one national law governs the electoral process—unlike the 50 different laws in the United States. But democratic design is an important topic these days in Italy, which is debating switching from a proportional system of electing representatives to an American-style majoritarian one. “A coalitional government is a huge problem,” saysPasquino, who favors the switch. “It’s indecisive, and if you have 20 parties, it’s hard to attribute responsibility.”

Elections Abroad
In U.S. domestic politics, elections always appear to be a good thing, the exercise of individual rights to influence how to run the nation. But this doesn’t necessarily translate overseas, especially when ill-prepared countries with new democracies rush to hold elections. Issacharoff criticizes American foreign policy in recent years as “hold the goddamn elections someplace at some time and the outcome be damned.” That policy has only exacerbated tensions in places like Iraq, Palestine and Kazakhstan. A presidential election, he says, needs to be preceded by such things as functioning parliamentary institutions, some judicial counterweight and human rights monitors. Otherwise, “an election can be a referendum on who’s going to use state power to suppress everyone else, and that’s not a democracy,” Issacharoff says.

In a Washington Post opinion piece published in 2005, Issacharoff argued that what defines a democracy is not the first election but the second. Pildes thinks the rush stems from the “naïve, romanticized” image of democracy held by many people—to wit, all will be fine if we can get citizens just to speak their minds and vote their preferences.

Trying to export Western-style democracy generally is fraught with dangers. Walter E. Meyer Professor of Law Stephen Holmes, who has written extensively and consulted on emerging democracies in Eastern Europe, also has little time for people who “pretend to be experts” and go around the world selling their services as constitutional or electoral engineers. “You can more easily unplug an appliance in New York and plug it in in Moscow,” Holmes says, “than you can unplug our due process system and put it in Moscow.” He recalls how, in the early 1990s, some American lawyers grew concerned that Albania was removing judges without cause. They went there and had the law rewritten to prevent that. So the Albanians starting putting judges in jail instead.

What’s critical is a thorough understanding of the informal networks that determine whether a country functions well or not. In Iraq, for example, Holmes says the United States lost three to four years insisting it would negotiate only with elected officials rather than tribal leaders. “This was a case of trying to export democracy, which blinded us to the elementary building blocks of a negotiated settlement in Iraq,” he says. Similarly, he ponders whether having an election today in Pakistan would make their handling of nuclear weapons more or less safe. “You can’t assume you know the answer,” Holmes said.

To say that the only legitimate leaders are those elected “shows a zero understanding of world history,” Holmes contends. “Most leaders throughout history have not been elected, and they have been as effective or ineffective as elected ones.”

Waldron, on the other hand, is not so quick to question elections. Of course, he says, it makes little sense to have elections without traditions like mutual tolerance and a culture of deliberation. But he argues that peoples’ urge to participate in elections is strong—witness Iraq or South Africa—and should be respected. “What I definitely reject is the view that the electoral dimension of democracy is a sham, or just icing on the cake,” Waldron asserts.

Such rigorous discussion underscores how important Law of Democracy is and will continue to be in domestic and world politics. Change, whether it be in the form of a new democracy created or an established democracy like the United States facing the real possibility of electing its first black president, seems an integral element of our times and for the foreseeable future. And you can bet that Samuel Issacharoff and Richard Pildes will continue to insert their idiosyncratic views into the global debate.

—Larry Reibstein is a New York journalist who has previously written about law and philosophy for the magazine.

—Editor’s note: Since this article was published in September 2008, Adam Cox has joined the NYU Law faculty.
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