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God doesn’t save idiots, Eli

[ 3 ] May 14, 2010 |

Via Linkmeister, it appears that the Republican senator from my state is worried that small oil producers who can’t shoulder the risk will be deterred from imperiling offshore marine environment.

Always looking out for the little guy. How thoughtful of her.

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Fun With Historical Counterfactuals: Did Brown‘s Unanimity Matter?

[ 28 ] May 14, 2010 |

I’ve been having a conversation with the very sharp Silvana Naguib. Particularly since my general position on this is on the record, and I think the analysis applies to anybody Obama might have appointed, rather than turn this into the umpteenth Kagan post let’s talk about Brown v. Board instead.

As I mentioned in the post below, I think that Mark Tushnet makes an excellent case in his underrated biography of Thurgood Marshall that had the Vinson Court issued an opinion rather than holding the case over for re-hearing it would have ruled school segregation unconstitutional. But of course the influence of Warren is presumed not just to be in Brown’s holding but in the fact that he was able to generate a unanimous opinion despite the initial skepticism of several of his brethren. The ability of Warren to get Jackson to keep his threatened concurrence to himself, strong-arm Stanley Reed into joining the majority, etc. is the kind of statesmanship and ability to persuade that it’s the hot thing to look for in a Supreme Court justice. But the key question is whether any of this maneuvering mattered? My answer: Brown being a unanimous opinion probably had no impact on its short or long term acceptance, and the general tradition of requiring unanimity of in desegregation cases if anything had a net negative impact on desegregation Southern schools.

With respect to the short-term reaction to Brown, the evidence is about as clear as a counterfactual can be. It’s hard to imagine how an 8-1 or 7-2 opinion could have generated any more resistance. There was basically no school integration in the Deep South before the Civil Rights Act. Most Southern members of Congress signed a manifesto declaring the opinion lawless. Southern politics became so radicalized that it became almost impossible to be too racist when you were running office. I don’t really see how a dissent could have made things worse. And long-term, Brown was always going to be accepted because the Court got itself on the right side of history. The only plausible impact of a dissent by Reed would have been a permanent stain on Reed’s reputation. I don’t see how Brown‘s unanimity mattered.

Moreover, as Michael Klarman (who I think is much more sympathetic to this general line of reasoning) has pointed out, the “all deliberate speed” formulation that was cooked up to keep everyone on board in Brown II probably had a small net negative impact on integration in the South. As Black and Douglas always understood, there was never going to be more than token integration in the near term. But the some of the federal judges in the South who might have felt to compelled to obey a clear directive had no reason to issue strong pro-desegregation rulings when the Supreme Court’s controlling opinion didn’t actually require them to do anything. A Court that was less concerned about a futile attempt to persuade Southern moderates and that had just issued a short follow-up ruling saying that school segregation was unconstitutional now might have had some slight positive impact on integrating Southern schools, although any opinion it issued would have been widely resisted.

A final argument in favor of the impact of Warren’s persuasive abilities might be that the tradition of unanimity in desegregation opinions increased support for vigilance on the part of the federal courts. But it’s hard to see how this is true. The the case where the tradition of unanimity was abandoned involved a holding that a segregated and unequal public school system was constitutional. And of course Parents Involved has starkly indicated the extent to which Brown has come to stand for a nearly meaningless formalism that now actually prevents some school districts from trying to integrate their schools. Again, it’s hard to see how the unanimity of Brown mattered here.

In essence, Supreme Court decisions are ultimately judged by results: not by the reasoning, and not by the vote lineups. If persuasive ability matters, it’s only to the extent that it can affect swing votes (and even then cases where this is possible are likely to be very rare.)

Breaking!!!!! We Have Evidence That Erick Erickson Isn’t Very Bright!!!!!

[ 16 ] May 14, 2010 |

Shorter Erick Erickson: If, like me, you’re not sufficiently literate to distinguish between normative and empirical arguments, than Elena Kagan is a total socialist!!!!!!! Because everybody pretty much believes everything they believed is an undergraduate!!!!!!!!

I’m not even sure what the point is — I mean, please, torpedo her nomination! — but attempts to prove that Kagan is a radical leftist are going to be especially feeble. Or, in other words, made for Erick Erickson.

[Image credit.]

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“Countering” Terror By Eroding Justice

[ 23 ] May 14, 2010 |

Everyone needs to read Glenn Greenwald’s analysis of the shift from denying basic human rights to non-US terror suspects under Bush/Cheney, to denying such rights to American citizens under Obama/Biden.

A bipartisan group from Congress sponsors legislation to strip Americans of their citizenship based on Terrorism accusations. Barack Obama claims the right to assassinate Americans far from any battlefield and with no due process of any kind. The Obama administration begins covertly abandoning long-standing Miranda protections for American suspects by vastly expanding what had long been a very narrow “public safety” exception, and now Eric Holder explicitly advocates legislation to codify that erosion. John McCain and Joe Lieberman introduce legislation to bar all Terrorism suspects, including Americans arrested on U.S. soil, from being tried in civilian courts, and former Bush officials Bill Burck and Dana Perino — while noting (correctly) that Holder’s Miranda proposal constitutes a concession to the right-wing claim that Miranda is too restrictive — today demand that U.S. citizens accused of Terrorism and arrested on U.S. soil be treated as enemy combatants and thus denied even the most basic legal protections (including the right to be charged and have access to a lawyer).

I tend to think we should care just as much about our government’s treatment of non-citizens as we do of citizens, but Greenwald argues that this new trend is particularly disturbing in political terms:

There is, of course, no moral difference between subjecting citizens and non-citizens to abusive or tyrannical treatment. But as a practical matter, the dangers intensify when the denial of rights is aimed at a government’s own population. The ultimate check on any government is its own citizenry; vesting political leaders with oppressive domestic authority uniquely empowers them to avoid accountability and deter dissent.

He declines however to suggest what ought to be done to change this trend – in other words, is it too late for dissent to make a difference? I welcome readers’ ideas. I think many voters thought they’d already taken the appropriate step by electing a progressive, pro-civil liberties leader. With the writing on the wall, what now?

Reader Feedback: Sherman Minton And, Yes, Sam Alito Is Very Conservative Edition

[ 21 ] May 14, 2010 |

A couple questions/retorts to the post below are worthy of response. First, from Erik:

What I find really interesting about this data is that every one of Truman’s selections to the court turned out pretty conservative. What was Truman thinking in making his selections?

To oversimplify only very slightly, Truman’s primary concern in his appointments was rewarding his cronies and poker buddies. The results of this basically anticipated Byron White — Cold War liberals at the dawn and entrenchment of McCarthyism, Truman’s appointees had hideously awful records on civil liberties. It must be said, though, that since Cold War imperatives compelled at least some measure of opposition to Southern apartheid, Truman’s appointees actually had a good record on civil rights, going along with a series of pathbreaking anti-segregation decisions. Indeed, to preview an issue I’m going to get to in a couple posts tomorrow, I’m persuaded by Mark Tushnet’s contrarian case that even had the much-maligned Fred Vinson not suddenly passed away, the Court (with Vinson in the majority) would have ruled school segregation unconstitutional.

David Nieporent, meanwhile, objects to my TAPPED post:

I do like your TAPPED post, where you argue that if we throw out most of the data that contradicts your beliefs, then your beliefs are strongly confirmed by the remaining data.

If you’ll click through, you’ll note first of all that this is flatly erroneous. The Althouse/Taylor position is that liberals were crazy to oppose Alito because he was much more moderate than Scalia. Even at face value, the data shows that Alito (and Roberts) are just as conservative as Scalia and only marginally less conservative than Thomas. So, in short, I was right and they were wrong, which isn’t very surprising given that their position never had any supporting evidence.

But as to my additional point — that if you look at meaningful votes Alito and Roberts would look much more conservative than Scalia — I certainly stand behind it. I’ve listed some examples in comments, but let me turn things over to Robert Gordon:

While Alito goes to conservative places Scalia won’t, the more telling point is that Scalia goes to liberal places Alito won’t. Scalia has a libertarian streak that can yield surprising results. In a 5-4 decision, Scalia found that the government could not, without a warrant, use a sophisticated thermal imaging device to figure out what you are doing in your home—whether growing marijuana or making whoopee. And Scalia dissented from a decision upholding mandatory drug testing for Customs employees, charging that it is a “kind of immolation of privacy and human dignity in symbolic opposition to drug use.” When his libertarianism combines with his (sometime) commitment to “original intent,” Scalia offers other surprises: Last year he wrote an eloquent opinion concluding that the president lacked power to detain enemy combatants. Only the court’s most liberal member, John Paul Stevens, joined that position; Stephen Breyer, another liberal, provided the key vote for a controlling view friendlier to the president. And unlike other conservative colleagues, Scalia has endorsed sharp limits on the power of judges to lengthen sentences for defendants, the power of prosecutors to use hearsay evidence, and the power of police officers to detain defendants before arraignment.

And since Alito joined the court we’ve seen further cases in which Scalia has cast a decisive vote for a liberal position (over Alito’s dissent, joined by Roberts) and in which Scalia and Thomas have cast liberal votes against conservative majority opinions joined by Alito and Roberts. Correct me if I’m wrong, but I believe there’s no example in a major case of Alito or Roberts either casting a decisive vote for a liberal opinion or dissenting from the left. So, in other words, the data actually understate the relative conservatism of Alito and Roberts. If you’re bringing a civil liberties lawsuit or trying to get a punitive damages judgment upheld, you might have a chance with Scalia or even Thomas — but the votes of Alito and Roberts will only be in play if you’ve already won. So, functionally, Roberts and Alito are the two most reactionary justices since James McReynolds.

Unilateral Disarmament

[ 28 ] May 13, 2010 |

I think this data, which I discuss here, needs to be much more widely circulated:

And I think this data — because it can’t fully account for shifts in the center of gravity in the Court — actually understates the asymmetry between the current “conservative” and “Rockefeller Republican liberal” wings. Very few legal scholars, I think, would see Burger (74) as comparably conservative to Scalia (76) — but of course there’s a difference between being “conservative” compared with majority opinions being frequently written by Powell and Stewart and Brennan, as opposed to being “conservative” compared with majority opinions frequently being written by O’Connor and Kennedy and Rehnquist.

Win-Win

[ 10 ] May 13, 2010 |

I think Matt has exactly the right reaction to this Douthat op-ed : what Douthat prevents as a “tradeoff” is just a strong case that providing women access to abortion increases both individual freedom and family stability. Call me crazy, but reducing unwanted births for teenage mothers is…a good thing!

I should also note that the data cited by Douthat also make a complete hash of his frequent assertions that the United States has an “absolutist” pro-choice legal regime. Rather, state governments are allowed to regulate abortion in a lot of ways, and while these regulations don’t have huge effects on overall abortion rates they do make it much harder for women from whom the consequences of being forced to carry an unwanted pregnancy to term are most dire to obtain abortions. I think this explains why Douthat needs to be dishonest about what Casey actually holds; he’s certainly not going to opposed these kinds of regulations, but the desirability of “the status quo with more teenage mothers and desperately poor mothers” outcome Douthat is implicitly supporting is…far from self-evident.

A Brief Essay On How Political Power Functions In The United States (With Bonus Campaign Updates!)

[ 24 ] May 12, 2010 |

When I started blogging about the nomination of Elena Kagan to the Supreme Court, I expected the effect to be what most of you did: that Obama would withdraw the nomination, announce that it had been a belated April Fool’s Day joke, and immediately announce the nomination of Zombie Thurgood Marshall as Associate Justice. Strangely, this has not occurred. Some calls to my many well-placed sources within the administration have confirmed the most logical explanation for why Kagan remains the nominee. Obama, Senator Leahy, and their top advisers read and carefully considered my blog posts, agreed that I was correct, and began to prepare the appropriate press release. Unfortunately, the re-animation of former Justice Marshall had not been fully completed — Glenn Reynolds decided to join up with Jeff Sessions’ Restore James McReynolds project instead. It being too late in the day to begin the thawing of Jim Nabors William O. Douglas, the administration reluctantly concluded that Kagan’s nomination had to go forward.

This will all be obvious to most of LGM’s politically sophisticated readership. Some commenters, however, have advanced the radical thesis that my blog posts have not had a direct effect on the nomination and confirmation process. Now, it’s one thing if people get the bizarre idea that nobody in America’s political and economic elite knows who I am or cares what I think about anything. I can take the slings and arrows! But what if some gullible readers — despite all of the authoritative pronouncements of Roger L. Simon and Jeff Jarvis — get the idea that C-list political blogs are not at the apex of political power in the United States? I find it highly distressing that anyone could deny this obvious truth.

However! Lest you get the idea that I’m not a hugely influential muckety-muck, I have been made part of the highly exclusive mass campaign email list of Mickey Kaus, who at least in some formal sense is a candidate for the Democratic nomination for Senator. Why, that position entails almost as much power as writing blog posts! So allow me to share the latest campaign news:

He has appeared on a radio call in-show neither you nor I have ever heard of, but that probably has an influence among Democratic primary voters almost equal to that of Smooth Billy Bennett!

An op-ed about the influence of unions “will be unveiled somewhere soon.”  About time — I’m sick of Kaus’s position on this issue remaining a secret!

The LA Times will be remaining neutral!

A lot of other unspecified things will be happening soon!

Hey, when he’s the nominee, don’t forget who made it happen…

[Picture stolen from FMK.]

Please stop hitting me, Professor Kagan

[ 157 ] May 12, 2010 |

As Glenn Greenwald points out, skepticism about the Kagan appointment issuing from anyone left of Miguel Estrada (who by the way thinks Kagan is a terrific pick) has been met with the sort of response engendered by essentially tribal loyalties. “Our” team’s captain has made his decision, and now it’s time for everybody to get dutifully on message. All this is natural and predictable; what I find more interesting is the extent to which the tribalism of legal academia is playing a role in the support for Kagan. It’s hardly surprising that Kagan’s friends and colleagues from Harvard and Chicago are leading the charge in her behalf. What’s more notable is the number of conservative legal academics, including Stephen Bainbridge, Eugene Volokh, Charles Fried, and Glenn Reynolds, who are either enthusiastically supportive or at least not opposed to Obama’s pick.

Update: Ken Starr thinks she’s a great pick as well.

One particularly striking feature of the Kagan nomination is the extent to which it threatens to throw an unflattering light on various aspects of legal academia. It’s no doubt coming as a surprise to lots of people in other precincts of academia that it’s possible to get tenure at two of America’s top universities while publishing as little as Kagan has published, especially given that nothing she’s ever published was subjected to a genuine peer review process prior to publication. (Her articles in the Chicago and Harvard law reviews were chosen by Chicago and Harvard law school students, some of them who were in her classes at the time. Her two pieces in the Supreme Court Review were chosen by members of her own current faculty in the first instance, and her former faculty colleagues in the second). This, of course, is not primarily a criticism of Kagan herself, but of the system which has produced her — a system which among other things rewards puerile obsessions with structurally phony citation counts as a substitute for actually reading and evaluating what somebody has written.

Yet the advice to hate the game not the player rings hollow when the time comes to decide whether a particular player should be promoted to a different league altogether. Speaking of that game, consider this vignette about Kagan’s teaching:

As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.

Here’s the thing about the Socratic method: it freaking blows when people are not prepared. Sure, it’s horribly embarrassing for the person who is stumbling through, trying to answer questions based on cases he or she hasn’t read. But it really just slows the whole class down. Yes, 5% of us didn’t read International Shoe, but 95% of us did; can you focus on the ones who did their homework?

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
PROFESSOR KAGAN: ALOUD.
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Given that we know so little of substance about Kagan, I suggest this little incident has some evidentiary value. It’s not Kagan’s fault, after all, that the standard publication and evaluation process for legal academics is a bad joke (although of course she can be criticized for the actual content, or the absence of content, of the texts she generated while taking part in that process). But, as even the cowed and terrified Mr. Mystal recognized, not too many law professors today indulge — or at least not to anything like this extent — in the combination of authoritarian browbeating and pedagogical infantilization that are the hallmarks of the classic “Socratic” (sic) method.

That method was (is) a horribly ineffective way to transmit substantive knowledge. If educational theorists agree on one thing it’s that pedagogical terrorism doesn’t work — assuming the point of the exercise is for people to actually learn what you’re claiming to teach them. But of course as critics have been pointing out for many decades now, that was never the real point. Here is a small piece of Duncan Kennedy’s more than 30-year-old critique of the classic method:

The classroom is hierarchical with a vengeance, the teacher
receiving a degree of deference and arousing fears that remind one of high school
rather than college. The sense of autonomy one has in a lecture, with the rule that
you must let teacher drone on without interruption balanced by the rule that
teacher can’t do anything to you, is gone. In its place is a demand for
pseudoparticipation in which one struggles desperately, in front of a large
audience, to read a mind determined to elude you. It is almost never anything as
bad as The Paper Chase or One-L, but it is still humiliating to be frightened and
unsure of oneself, especially when what renders one unsure is a classroom
arrangement that suggests at once the patriarchal family and a Kafkalike riddle
state. The law school classroom at the beginning of the first year is culturally reactionary.

Now as Kennedy goes on to point out, this “method” is not merely culturally reactionary, it’s politically reactionary as well. The whole point is to produce lawyers, which is to say people, who never question the fundamental power relations encoded by the legal, economic, and cultural status quo. And in that sense, it was and remains quite effective. As TT points out in a comments thread below:

How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

Precisely. Indeed that’s what the classic Socratic “method” is all about — it’s a performance designed to demonstrate that the performer is In Charge Here and a Very Serious Person who you had best defer to if you know what’s good for you. In short, it’s authoritarianism at its most straightforward and distasteful — and anyone who currently practices it in 180-proof form in an American law school at this late date should be viewed with suspicion: not merely as an educator, but in terms of that person’s fundamental orientation towards hierarchy, authority, and social power. Which is another way of saying, in terms of her politics.

So This is England…

[ 19 ] May 12, 2010 |

I’m sitting in Plymouth, UK in the Americano Coffee House. The theme appears to be an English interpretation of a upscale American coffee house. There’s a picture of Che Guevara on the wall, for some reason. As you walk out, there’s a big sign saying “Adios Amigos!” On the menu are the following drinks:

Classic Americano (espresso and water, or what you’d expect)
Premiere Americano (an Americano with whipped cream)
Cuban Americano (an Americano with cane sugar)
Canadian Americano (an Americano with maple syrup)

There’s also a host of drinks filled with enough sugar to make Starbucks blush. On the downside, no drip coffee and no refills. On the upside, they appear to have the loosest wifi in town.

…and so apparently we remain in a Special Relationship. That’s lovely.

Summing Up What’s Wrong (And What’s Not Wrong) With The Kagan Pick

[ 31 ] May 12, 2010 |

I have a piece up at TAP that sums up my position on the Kagan pick. What I see as the core of the argument:

But it must also be noted that plenty of candidates, including all of the other members of Obama’s shortlist, exceeded the formal minimum qualifications by an even greater margin. To say that Kagan is reasonably qualified for the Supreme Court does not constitute an affirmative reason to select her instead of an arguably more accomplished and more clearly liberal candidate such as Diane Wood or Sidney Thomas. When considering a Supreme Court nominee, a president should be looking for something more than merely “good enough.” Kagan may be to the left of John Roberts, but that still leaves a lot of ideological territory open. Two historical Supreme Court nominations illustrate the magnitude of the risk Obama is taking.

First, consider the case of Byron White, a John F. Kennedy appointee. Although little public record of his constitutional views existed, White was well known to the Kennedy administration and had views broadly consistent with mainstream Democrats’. On civil rights and federal power — the issues of the greatest interest to the Democrats of the early 1960s — White remained a consistent liberal throughout his career. But White was less solid on the civil-liberties issues where the Kennedy administration’s commitment to progressive values was more dubious. He dissented from many of the Warren Court’s landmark rulings on the subject, including Miranda v. Arizona. Over the course of a long judicial career, he also proved to be a surprisingly consistent ally of William Rehnquist on the new issues that inevitably arose before the Court, such as abortion.

And so liberals had a Democratic appointee who dissented in many of the Warren and Burger courts’ liberal landmarks and wrote the Court’s appallingly homophobic opinion upholding laws banning “sodomy” over the dissents of two Republican appointees. This is not to suggest that Kagan will vote to overrule Roe v. Wade or Miranda v. Arizona. After all, what it means to be a mainstream Democrat is very different in 2010 than it was in 1962. But it does suggest that putting a relative blank slate on the Court carries a substantial risk of ideological heterodoxy and drift.

We should also remember Ronald Reagan’s handling of the nomination of Robert Bork. As Jan Crawford Greenburg explained in her recent book about the Court, had Reagan nominated Bork instead of Antonin Scalia while the GOP controlled the Senate, it is overwhelmingly likely that Reagan could have had both on the Court. Instead, Reagan had to settle for the more centrist Anthony Kennedy.

So why is Obama repeating Reagan’s mistake now? Kagan is the youngest and perhaps the most easily confirmable of the top Supreme Court candidates, and Obama is virtually certain to receive at least one more appointment just as the Republicans are virtually certain to gain substantial representation in the Senate this year. It would be smarter to let Kagan get more experience as solicitor general and to use this opportunity to nominate a candidate who might face a tougher confirmation later on.

Indeed, Obama may be doing Reagan one better, as nominating Kagan presents the possibility of getting two liberal equivalents to Kennedy rather than just one, as getting even a mainstream liberal confirmed in a closely divided Senate will be difficult.

The first big issue I’ve already discussed, but I think it’s clear that “Obama knows her views well” isn’t a very convincing argument. It could be that Obama knows that she’s a solid liberal. It could be that Obama is comfortable with a moderate on the Court, just as he’s comfortable with moderates running economic policy (and an outright conservative running the Federal Reserve.) We don’t know, because the category “mainstream Democrat” encompasses a lot of room.

But I think the second point is decisive, and I have yet to hear a decent response to it. Kagan is a risky (from the standpoint of liberal constitutional values) pick in a political context in which such risk is politically unnecessary. I think that’s the bottom line.

“And Justice For All”?

[ 1 ] May 12, 2010 |

Gary Haugen and Victor Boutrous have a useful article in the new print version of Foreign Affairs, pointing out that all the human rights standards in the land mean nothing if they’re not translated into practical justice for every human being. Particularly, they point out how the ability to enjoy one’s legal rights is related to wealth.

Efforts by the modern human rights movement over the last 60 years have contributed to the criminalization of [various] abuses in nearly every country. The problem for the poor, however, is that those laws are rarely enforced. Without functioning public justice systems to deliver the protections of the law to the poor, the legal reforms of the modern human rights movement rarely improve the lives of those who need them most…. Helping construct effective public justice systems in the developing world, therefore, must become the new mandate of the human rights movement in the twenty-first century.

An important and timely argument that may constitute a major reframing of human rights discourse and practice. Two minor rejoinders, however: Read more…