Philip Alston and Sara Knuckey, ed. The Transformation of Human Rights Fact-Finding (Oxford University Press, 2015)

Barton Beebe, Haochen Sun, and Madhavi Sunder, eds. The Luxury Economy and Intellectual Property (Oxford Univ. Press, August 2015)

Jennifer Arlen ’86. Research Handbook on Corporate Crime and Financial Misdealing (Edward Elgar Publishing, 2016)

Sally Engle Merry, Kevin Davis, and Benedict Kingsbury, eds. The Quiet Power of Indicators: Measuring Development, Corruption, and the Rule of Law (Cambridge University Press, May 2015

Gráinne de Búrca, Dimitry Kochenov, and Andrew Williams, eds. Europe’s Justice Deficit? (Hart Publishing, 2015)

Erin Murphy. Inside the Cell: The Dark Side of Forensic DNA (Nation Books, 2015)

View a comprehensive list of recent faculty scholarship (PDF).

Award-winning 2014-15 scholarship by faculty and students

Danielle DeBold ’14
“The Decriminalization of Rape on America’s College Campuses: How Federal Sex Discrimination Policy Has Diminished the Role of the Criminal Justice System in Combating Sexual Violence”
Winner, 2014 Selma Moidel Smith Law Student Writing Award
(National Association of Women Lawyers)

Eleanor Fox ’61
“When the State Harms Competition—The Role for Competition Law”
Best Academic General Antitrust Article, 2015 Antitrust Writing Awards
(Concurrences and the George Washington University Law School Competition Law Center)

Russell Gold, Associate Director, Lawyering Program
“Beyond the Judicial Fourth Amendment: The Prosecutor’s Role”
2015 Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility
(Association of American Law Schools)

Alexander Levy ’14
“Believing in Life After Loving: IRS Regulation of Tax Preparers”
First Prize, 2014 Tannenwald Writing Competition
(Theodore Tannenwald Jr. Foundation for Excellence in Tax Scholarship and the American College of Tax Counsel)

Daniel Rubinfeld
“Is there a Market for Organic Search Engine Results and Can Their Manipulation Give Rise to Antitrust Liability?”
Best Academic Dominance/Monopolization Article, 2015 Antitrust Writing Awards
(Concurrences and the George Washington University Law School Competition Law Center)

Eileen Woo ’16
“The Doctrine of Unexpected Results Following the Federal Circuit’s Decision in BMS v. Teva”
Winner, Patent, Trademark & Copyright, 2015 Bloomberg Law Write On Competition
(Bloomberg BNA)

—

All of 2015 Arguments and Opinions

2015 Home

—From Violence All Around by John Sifton ’00, now Asia advocacy director at Human Rights Watch. This 2015 book, his first, is a documentation and exploration of the abuses he reported on before and after the 9/11 attacks. Excerpted with permission from Harvard University Press.

—

All of 2015 Arguments and Opinions

2015 Home

Satterthwaite, Bertini, and Nov have already completed two initial user-based studies that investigate how readers respond to visual presentations of data. One study verifies that data visualization is a more effective tool than text in conveying statistics to the reader. In another study focusing on deceptive visualization, Satterthwaite and her collaborators show how it is possible to deceive readers by using correct data but changing the expected visualization. Inverting the axis on a line graph, for example, can lead a reader to believe that an increasing trend is, in fact, decreasing.

“It was quite disturbing how easy and how intense was the effect of deceptive visualization,” Satterthwaite says. Understanding how readers comprehend and react to information graphics is key to helping researchers avoid accidentally overstating or understating their findings. Satterthwaite also notes that it is important to recognize the dangers of deceptive data visualization, which, out of the zeal to convince, could be used to mislead the audience.

Now, with the grant from the John D. and Catherine T. MacArthur Foundation, Satterthwaite says the next phase of research will be to work with various human rights organizations to implement these findings. “The hope,” she says, “is for it not to be just an academic study but a collaboration with real-world impact on how human rights organizations employ data visualization in ongoing research and advocacy.”

Satterthwaite’s work on data visualization is part of a series of interdisciplinary collaborations in which she hopes to encourage innovation in the ways that human rights workers document and demonstrate violations. In a chapter she is contributing to The Transformation of Human Rights Fact-Finding (co-edited by Philip Alston, 2015), Satterthwaite joins Princeton researcher Justin Simeone in looking at whether, as researchers incorporate quantitative methods into human rights research, they can or should follow the same disciplinary standards that guide social science researchers.

Video: Using quantitative data in human rights research

Traditionally, human rights advocacy has been based on testimonial evidence, a methodology that grew from practices of law and journalism. People respond emotionally to stories, and the goal of human rights research, after all, is to persuade policymakers and the public to take action to prevent or stop violations. “One of the great strengths of the human rights movement is our ability to tell the story of the victim, of the survivor, and compel people to act,” says Satterthwaite, who co-edited the 2008 book Human Rights Advocacy Stories. “That is an ethical duty that we have, and we should not abandon it.”

The incorporation of social science methods into human rights research has the potential to amplify the power of storytelling. “Somebody might be really compelled by one story of a person getting killed,” Satterthwaite says. “But if you tell them there are 10,000 of those people being killed, their empathy suddenly shuts down.” Demonstrating the right to equal access to drinking water, however, is best shown visually through statistics such as the proportion of a population that lives within a kilometer of safe water and the prevalence of diseases caused by unsafe water.

Satterthwaite hopes the trio’s work will guide researchers to make the best choices in employing the methods at their disposal. “It may simply be a question of what kind of evidence you need,” she says, “depending on your audience and your purpose.”

—

All of 2015 Arguments and Opinions

2015 Home

This is not Alston’s first time serving as a UN special rapporteur; from 2004 to 2010, the international law professor was the rapporteur on extrajudicial, summary, or arbitrary executions. But his new position comes with a different set of challenges. “At one level,” says Alston, “looking at unlawful killings is much easier, because you can generally count bodies. You can identify specific victims, and you can identify specific perpetrators.”

Video: Alston on taking on the role of rapporteur a second time

By contrast, poverty is often perceived as unsolvable. Extreme poverty is not caused by one factor alone; in addition to failures of governmental policy, causes of poverty can include social discrimination, violent conflict, and environmental conditions such as hurricanes, earthquakes, or climate change. That also means that governments can deflect responsibility and blame extreme poverty on factors out of their control. Says Alston: “The challenge for me is to make sure that what I say identifies tangible challenges that can be met and helps to mobilize broader public opinion to actually do something about the issues.”

One of the reasons NGOs and human rights organizations have tended to stay away from the intersection of economics and human rights, Alston says, is that human rights activists are wary of veering into economic policy debates and are particularly hesitant to advocate for any kind of redistribution of resources. “My view is that without forms of redistribution, which is what progressive taxation is all about, you can achieve only a very limited subset of human rights,” Alston says. “All human rights involve some form of redistribution of resources. And to identify this as a line that can’t be crossed is a big mistake.”

Although conditions of extreme poverty are often more widespread in developing countries, Alston argues that it is important to hold nations accountable according to their resources. “There’s no doubt in the United States that the close to 50 million people who are living in poverty by our own estimates could be lifted out of that poverty with appropriate public policies,” Alston says. That statistic is unacceptable in a country as wealthy as the United States, he argues, and it indicates that as a society, “we don’t consider that there is a right to live in dignity, and with access to the minimum essential economic and social goods that are required.”

Alston has already joined two other UN rapporteurs in condemning the disconnection of water services in Detroit homes where residents cannot pay their bills. That action “constitutes a violation of the human right to water and other international human rights,” they said in a statement. Within days, the Detroit authorities announced that they would revise the policies they had previously insisted were non-negotiable.

As Alston sees it, he must be an effective voice advocating on behalf of the impoverished because circumstances hinder their ability to advocate for themselves. Facing conditions in which access to basic rights such as food, water, and shelter is limited, the extremely poor often cannot exercise their civil and political rights. “They can’t get out to vote, they don’t have the energy, they don’t have the time, they don’t have the transport, they don’t have anything,” Alston says. “So the right to vote is often quite meaningless to them—they’re engaged in a daily struggle for existence.”

Video: Alston on metrics for success

—

All of 2015 Arguments and Opinions

2015 Home

Waldron’s theme, “One Another’s Equals: The Basis of Human Equality,” concerned the meaning and roots of human equality. The first lecture examined the theory of human inequality proffered in Hastings Rashdall’s seminal 1907 work The Theory of Good and Evil, while the second lecture distinguished basic equality from normative positions that are founded upon it. Waldron also looked at the respective approaches of Thomas Hobbes, Immanuel Kant, and John Rawls; considered the work that basic equality must perform; and analyzed the role played by a higher power, culminating in a final lecture exploring the impact of various life stages and profound disabilities on the idea of human equality.

The following excerpt is from the end of the first lecture.

These lectures are focused on basic equality—on our being one another’s equals, of equal worth, equal dignity. I said this was something distinct from questions about surface-level equality and inequality. You may think this emphasis is misplaced, given the extent and significance of real economic inequality in the world—record inequality, explosively increasing inequality, especially in the United States—as analyzed and discussed, for example, by Thomas Piketty in his 2013 book Capital in the Twenty-First Century. Certainly the trends that Piketty discusses deserve great attention. We must never forget that, as my colleague Thomas Nagel puts it, we live “in a world of spiritually sickening economic and social inequality.”

One aspect of that attention is the possibility that economic inequality may compromise or undermine equal basic dignity. I don’t just mean that the extent of inequality that Piketty and others have revealed is beyond anything that basic equality could possibly justify or permit (though that is certainly true). I mean that the drift towards radical economic inequality might well seep into the realm of basic equality and undermine it. In part great economic inequality, great poverty, is often associated with the view or can become associated with the view that the poor are not fully human, or that it is only the prosperous who are living fully human lives. Nobody owns up to this at the moment, but the question is: are we weakening the basis of people’s disinclination to say anything like that?

You see, as class becomes caste, as birth becomes destiny, as economic mobility begins to shrivel, as differences of opportunity start disclosing different kinds of life, there is a danger that status distinctions among humans may begin to reestablish themselves. I said earlier that modern societies pride themselves on being “single-status societies,” that we have rejected the old idea that differences of race, gender, and class determine different types of legal personality. But that may be a fragile and reversible achievement.

Think of how it might work with race, for example. In the United States we have massive levels of incarceration of African American men; we have a situation in which felony convictions make it impossible for those affected to resume any sort of normal economic or political life even after they have been released from prison. In many states someone with a felony conviction cannot vote ever again; it is a lifetime disqualification, applying now to hundreds of thousands of people. This is a massive degradation of status. And as a matter of brute reality it is often very difficult for an ex-felon to find work or participate normally in the social life of the community. There is a terrifying correlation between economic inequality and severe racial disadvantage, with massive implications for structures of opportunity and incentive.

It remains true that those who impose, support, or tolerate these disadvantages do not say that there are differences of basic worth or basic dignity between those who suffer from them and those who lead what are regarded as “normal human lives.” They still accept the thesis that all humans are basically one another’s equals. But when does that start becoming lip service? When does the willingness to tolerate and defend these massive surface-level inequalities begin to subvert or belie people’s commitment to elementary equality at the most basic level?

—

All of 2015 Arguments and Opinions

2015 Home

What impact has this had on the more than 60 million Americans who have criminal records of some kind? In his 2015 book, The Eternal Criminal Record, James Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, documents the reach and longevity of criminal records, as well as how they are used, rightly or wrongly, throughout society. “You could view this book as a case study of the impact of information technology on the criminal justice system,” Jacobs says.

The public accessibility of criminal records in this country today is unique in the world, he says: “It has almost reached the point where criminal records are entirely public, whereas in Europe, criminal records are treated as confidential.” The Eternal Criminal Record, while primarily US-focused, draws on this comparative research, conducted in part with Elena Larrauri, professor of law at Pompeii Fabra University in Barcelona, and Dimitra Blitsa LLM ’07 of Athens.

In Europe, criminal convictions are considered personal data. The European Court of Human Rights ruled last May that there is a “right to be forgotten,” meaning that individuals can ask search engines to remove links to personal information. By contrast, in the United States, even if a criminal record is formally expunged, there is nothing preventing the continued documentation of the existence of the record in unofficial databases.

In reaction to all this easy access, some civil rights groups have backed the Ban the Box movement, which advocates delaying the disclosure of one’s criminal history from an initial job application to a point later in the hiring process. But Jacobs objects to treating convicts as a protected class. “I believe in the right of private employers to make their own decisions about whom to employ, except that those decisions should not be made on the basis of race, gender, or religion, which is completely irrational and unfair and immoral,” he says. “But making the decision based upon a person’s past conduct is not irrational. Private employers should be able to have that information and to act on it.”

—

All of 2015 Arguments and Opinions

2015 Home

Professor of Clinical Law Jason Schultz advocates for applying exhaustion limits to digital media. He sat with staffer Christine Perez to discuss the complex implications of his ideas.

In “Legislating Digital Exhaustion” [co-authored with Aaron Perzanowski, Berkeley Technology Law Journal, 2015], you suggest a transfer of ownership of digital media purchases that would require the seller to delete all of his or her copies. Why? And how could this be enforced? The idea is that there shouldn’t be two copies; there should only be one. If I want to enjoy it again, I have to buy it again.

Let’s make this very practical: I buy a song on iTunes. I want to resell this song and somebody says, “Sure, I’d love to buy that for 79 cents versus 99 cents on iTunes.” We do the transaction and I securely transfer the copies to just this person, and then I delete all of mine. But then a record company decides to sue me. My defense could be, “I no longer have any copies. All I did was transfer this copy for the purpose of effectuating a first sale, or essentially exhaustion.” End of story. So the way it gets enforced, in a sense, is only if you get sued.

Does the current copyright language complicate the issue? The current language of the Copyright Act says, “The owner of the particular copy….” The word “particular” is the problem. But if you say that it’s the owner of a “distinct” copy or an “original” copy or a “single” copy, depending on how you want to phrase it, that basically gets to the point.

It seems consumers should already be able to sell or lend digital media. They should, but the traditional media industries and critics of our proposal are opposed because they worry that digital exhaustion would allow everyone to cheat the system. The reality is, people are already cheating the system. The average teenager can crack a DVD and have thousands of copies made in a day. This happens on college campuses, in corporate workplaces, and among neighbors and friends. People copy media all the time, and there is no enforcement. So we already live in a “free-for-all” world; our proposal offers a legal and legitimate way forward that balances rewards for copyright owners with reasonable consumer rights.

Interview edited and condensed.

—

All of 2015 Arguments and Opinions

2015 Home

For many Americans, the now-repealed “don’t ask, don’t tell” policy regarding gays in the military offered a glimpse into the complexities that can result from one such combination. But laws and social norms have created many others that come into play in widely varying contexts. In “Don’t Ask, Must Tell—And Other Combinations,” forthcoming in the California Law Review, Samaha and Strahilevitz present a matrix of these combinations and explore how they operate in an integrated fashion. The professors focus on what they call “the extreme corner cases” of the matrix:

MUST ASK, MUST TELL: Laws requiring merchants to verify that purchasers of alcohol are of legal drinking age.

MUST ASK, DON’T TELL: Certain interactions between journalists and politicians—for instance, when a reporter asks an undeclared candidate, “Do you plan to run for president?”

DON’T ASK, MUST TELL: One view of the best rules for discussing marital infidelity and other transgressions in personal relationships.

DON’T ASK, DON’T TELL: Despite being scrapped by the military, it exists in other contexts, such as rules governing inadmissible evidence during a trial.

Why are a couple of law professors delving into the nuances of asking and telling about a person’s age or marital fidelity? Law, Samaha points out, is frequently used to try to facilitate or restrict the spread of information, and he and Strahilevitz have both done work in the area of “information flows.” But law does not act in isolation. “Often in my scholarship,” Samaha says, “I try to identify some social phenomenon, try to figure out how it works outside of law, and then almost all the time we can find it within legal institutions as well.”

Nowhere is this more true than in the employment arena. Both law and social norms, for example, generally prevent an employer from inquiring about a job applicant’s disabilities, and applicants often won’t mention them. Religion is another sensitive area, as evidenced by EEOC v. Abercrombie & Fitch Stores, in which the Supreme Court recently sided with a rejected applicant who wore a hijab at her job interview. The woman might have been entitled to an accommodation for her hijab despite Abercrombie’s dress code, but neither side raised the topic during her interview, Samaha notes. “Silence is the enemy of accommodation,” he says. “People are struggling to find constructive ways of discussing awkward topics like religion and disability. Employers are still guessing about their legal duties and liability risks. Hopefully a project like ours will help stimulate productive thinking.”

While the bulk of their article deals with dynamics between two parties, A and B, Samaha and Strahilevitz found they also needed to consider a third scenario: A asks for information about B from C, with C being big data. “The United States is in the midst of a ‘Reputation Revolution,’” they write, “where it is becoming easier for firms, governments, and ordinary people to learn a great many facts about any citizen, without ever asking that person a direct question.” They then discuss the implications of the rapidly expanding “Ask C” options for social norms and legal regimes.

And what of Samaha’s keys? They really were missing, but, absent his research interests, he would not normally have asked family members so bluntly if they had taken them, with an accusation embedded in the inquiry. As Samaha saw it, he was venturing into the same “don’t ask, must tell” territory of marital infidelity, where a presumption of trust requires A not to ask B if there has been a transgression and B to disclose one if it occurs. While nobody seemed to take offense, Samaha says, “it didn’t feel right with me to be asking the question that way; I felt like I was acting against the norm.” But, he notes, his inquiry did produce the keys—it turned out that someone had taken them and forgotten.

“It was a good reminder,” says Samaha, “that sometimes breaking norms that restrict information flows can be the best way out of an awkward situation.”

—

All of 2015 Arguments and Opinions

2015 Home

Readers of “Does Immigration Enforcement Reduce Crime? Evidence from ‘Secure Communities,’” published in the November 2014 issue of the Journal of Law and Economics, might not expect an article authored by two law professors to contain lines like this:

But Cox, who has an undergraduate engineering degree, and Miles, who is a PhD economist, both bring a strong empirical bent to their legal scholarship. For this study, they employed state-of-the-art econometric techniques to analyze an enormous data set of information on local crime rates, as well as extensive data they obtained through Freedom of Information Act requests from ICE. “These data allow us to identify precisely the counties and dates in which Secure Communities produced the largest numbers of detentions and deportations,” Miles says.

Cox, who taught at Chicago before joining the NYU Law faculty in 2011, has collaborated with Miles before. Both of them, Cox notes, are interested in areas of intersection between what the law is and what people such as enforcement officials and judges do to administer it. In their 2008 Columbia Law Review article “Judging the Voting Rights Act,” they examined voting rights cases (an area of scholarly focus for Cox) and judicial behavior (of particular interest to Miles) and identified racial peer effects on courts. What they found is that race has a powerful effect on outcome; having a black judge on a three-judge panel, for example, increases the likelihood that the two white judges will rule that there has been a voting rights violation.

With Secure Communities, immigration law and criminal law have been intertwined in an on-the-ground enforcement program. Cox read news reports about it as it was getting launched, and something caught his eye: the program would have a phased geographic rollout over a series of years. The staggered introduction across roughly 3,000 US counties, he explains, provided both the large number of study subjects and the randomization that statisticians look for in an experiment. “It was just like this light bulb went off in my head,” Cox says, “and I was like, holy cow, from the perspective of a social scientist, that’s awesome—it gives you this really unique ability to study a federal policy that you otherwise wouldn’t have the ability to study very well.”

A preliminary analysis published by Cox and Miles in the 2013 University of Chicago Law Review noted that the government initially activated Secure Communities in heavily Hispanic counties, suggesting that the aim may have been immigration enforcement more than the stated goal of crime reduction.

In their November 2014 article, the two conclude that Secure Communities—which has resulted in the detention of roughly 250,000 people, the vast majority of whom have been or will be deported—has had “no observable effect on the overall crime rate,” including violent crimes such as murder, rape, arson, and aggravated assault.

The implications of their findings, Cox says, depend on what you think the government’s priorities should be: “Our research will be successful if it moves the debate about immigration policy onto the right terms.”

—

All of 2015 Arguments and Opinions

2015 Home

“In country after country,” he writes, “the transition to democracy is eased by the creation of a court system specifically tasked with constitutional vigilance over the exercise of political power.”

These courts, Issacharoff says, serve two primary roles. First, during the political bargaining that establishes a new order, they can be critical actors, in part by assuring protections against majoritarian excess. Such was the case in South Africa, where the court was given—and exercised—oversight of the terms of the constitution before it was adopted in 1996, not merely judicial review once it was already in place. Second, in the name of self-preservation, fledgling democracies may limit participation by groups whose ultimate aim is the subversion of democracy—several former Soviet republics, for example, ban local communist parties from seeking office—and constitutional courts can provide oversight of such restrictions.

Perpetuating a democratic order depends on many factors and institutions, Issacharoff acknowledges. But, he writes, the reliance on constitutional courts “highlight[s] an important institutional shift in the structuring of new democracies…that has received insufficient attention to date.”

Video: How the Arab Spring influenced Fragile Democracies

A renowned scholar in civil procedure, constitutional law, and the law of democracy (a field he helped pioneer), Issacharoff has written extensively about the US political system, in particular efforts to regulate political spending. But two events in the US actually led him to shift his gaze away from American democracy: the intervention of the Supreme Court in the contested Bush-Gore presidential election of 2000, and the national security concerns that emerged in the wake of 9/11. “Each represented a significant challenge to the structure and integrity of American democracy, each exposing a characteristic vulnerability of democracy either to process failure from within or to external enemies,” Issacharoff writes in his book preface. “In the aftermath of these events, I began to wonder more systematically about how other democracies deal with such challenges.”

While Issacharoff focuses his inquiry abroad, America’s constitutional experience looms large. He recounts the observation of Albie Sachs, who served as a justice on South Africa’s constitutional court from 1994 to 2009, that it is difficult for any new democracy to resist the gravitational pull of US constitutional law. This is due to “not simply the longevity of American democracy and the US Constitution, but the commanding language and arguments honed by the US Supreme Court over centuries of constitutional debate,” Issacharoff writes. But he also cautions readers that “it is vital to understand the limits of the parallels between the threats that democracy faces in the United States and in other countries.” His book, after all, is about fragile democracies—places with little or no democratic tradition, and often suffering the ravages of ethnic or religious strife. The fairly absolute protections for expression and political participation provided by the First Amendment in the US, for example, might not be appropriate in such settings.

When Issacharoff began working on the book a decade ago, he found himself chronicling an unfolding story. The Arab Spring, for instance, began in Tunisia just five years ago. “This book was a nightmare to write, because I was chasing a moving target at all times,” he says. Inserted near the end of the book, he adds, is a discussion of the January 2015 election in Sri Lanka, “which occurred, to my editors’ chagrin, just as I was supposed to be turning in the final galleys.”

—

All of 2015 Arguments and Opinions

2015 Home