Upcoming Conference at Harvard

 Next Monday, I will be participating in an international panel discussion at Harvard on capital punishment with a number of other colleagues in the field, sponsored by the Harvard Institute for Global Law and Policy and the Real Colegio Complutense at Harvard.

It's free and open to the public, so drop by if you're in the area and the subject interests you. The full flyer in .pdf format is here



Harvard Conference Picture_Page_1



A Right to be Deleted

An American legal journalists reacts to a German internet privacy ruling: 

Wow, Europe just doesn’t buy the American idea that free speech online is sacrosanct. Earlier this month, the European Court of Justice ruled in favor of a “right to be forgotten,” requiring Google to remove links to old and embarrassing articles about debts a Spanish lawyer had long since paid. And now a German court has come down on the side of a woman who wants her ex-boyfriend to delete nude pictures and erotic videos of her from his computer. This kind of claim would never fly in the United States—the First Amendment would trample it. That’s exactly why I’m glad Europe is building a different sort of online universe. Will it prove better or worse to strike a different balance between the competing values of preventing reputational harm and protecting free speech? I look forward to finding out. 

There is no right to dignity in the U.S. Constitution, much less the freedom to control the development of one’s personality, or brand. You can sue someone for slander, or the publication of private facts, if defamatory posts go up about you online. But those cases are hard to win (and sometimes even to find out the identity of the poster, if he or she acts anonymously). It is also hard to get any kind of relief if someone has nude images of you even if they took them without your consentA few states have tried to address the problem of revenge porn, but this is only an initial effort. And it confronts an entrenched American tradition of treating the right to free speech as absolute. We do cherish our First Amendment.

What if the European experiment shows little speech of value to be lost—and a lot of relief from humiliation and invasion of privacy gained? Would we ever rethink our approach in the U.S.? Cases like this one in Germany raise the questions.

We seem to be witnessing the emergence of a Europe-wide legal consensus on the right to be forgotten (or in this case, deleted, since the defendant just had photos of his ex-girlfriend on his computer and had not posted them).

There are a couple of legal issues — antitrust enforcement, for example — in which courts all over Europe join a bandwagon to defend specifically 'European' values against American cultural influence. Which, as this case shows, can be a very good thing indeed! If European courts continue to develop the notion of Internet privacy, Big Data will have to develop programs to implement these rights. Of course they'll protest all the way, but once the model is developed, it can be also be used in the USA, if courts go along. We'll see.

Defenseless Victims: Germany’s Lax Justice Sets Child-Rapists Free to Strike Again and Again

Over on Facebook, a German friend of mine pointed to yet another tiresome example of the "tendentious, judgmental, sensationalist" reporting on American in the German press, in this case a Spiegel Online article about veteran healthcare in the US whose first line reads: "The US celebrates its soldiers as heroes — but once they retire, they're left on their own." All of them, apparently!

I have become careful about the German journalists I talk to, since a majority of them have no interest in actually profiting by (or even listening to) my expertise, but instead just want a soundbite that fits their preconceived notions — usually of the U.S. as a post-apocalyptic sinkhole of violence and racism. During the orgy of lies that constituted German coverage of the Trayvon Martin shooting, I was asked by a journalist from a German public radio station whether the verdict meant it was now 'open season' on young black teens. I had to chuckle.

So, in the name of fair play, I present a new series somewhat in the vein of Sartor Resartus, in which take actual German news stories and present them in the credulous, hyperventilating tone in which so many German journalists write about the USA.

Installment one:

Defenseless Victims: Germany's Lax Justice Sets Rapists Free to Strike Again and Again

DORTMUND – Jürgen S. is a rapist. Over the years, the obese, malodorous 59-year-old electrician from Dortmund has committed violent sex crimes against defenseless children. Yet in December 2010, the German authorities decided to completely stop monitoring him in the community after his last prison stint, trusting the repeat child-rapist to control his urges alone.

He lasted 6 months. In July 2011, he lured a 7-year-old girl into a parking garage and brutally raped her (g). He later confessed the deed, and was sentenced to prison, again. It was yet another horrifying — and preventable — debacle for the German criminal justice system: another young, defenseless victim stripped of her innocence and assaulted, all because the gullible German authorities decided Jürgen S. posed no more danger to society. How wrong they were.

Max L., the father of the 7-year-old rape victim, has had enough. He remembers how she returned home after the vicious assault, confused and bleeding. Since then, she has regular nightmares. "She will never be the same. Never. And all because some judge decided to set a known child rapist free to strike again." Holger Lundgren, a mayoral candidate for the German National Democratic Party in Dortmund, agrees. Speaking for many Germans, he says: "We have to take back control of our justice system from these liberal do-gooder judges who never have to face the bloody consequences of their slap-on-the-wrist punishments. Law-abiding citizens deserve a criminal justice system that keeps them safe." It may be because of straight talk like this that the German state is now attempting to ban the political party to which Lundgren belongs (g), using a controversial and frightening provision of the German Constitution.

Germany prides itself on its human rights record and Rechtsstaat, the word for rule of law. Yet in case after case, the German legal system — staffed largely by unaccountable bureaucrats with lifetime job guarantees — has failed miserably to protect the safety of Germany's ordinary citizens. Out of touch with ordinary reality, judges apply liberal laws that guarantee even vicious killers and repeat rapists will leave prison to strike again and again. When asked to justify their decisions, they retreat behind a wall of secrecy. They face zero public accountability for decisions that release vicious criminals to destroy yet more lives. On the rare occasions when these functionaries acknowledge the reality of the situation, they routinely accuse the press of "populism" and "yellow journalism" — simply for reporting the human cost of their decisions.

etc. etc.

Urban Archeology

The Corneliusstraße train overpass, one of Düsseldorf' many hideous underpasses, was recently stripped of its advertising hoardings, exposing squares of long-hidden posters and graffiti, including this advertisement, which appears to be for a long-ago performance of Swan Lake (Schwanensee) by the 'Ballet Classique de Paris' (extra points for anyone who can date this poster):

Corneliusstr. 18 May 2014 (Schwanensee)

Just above that I spotted the words 'raus aus Vietnam' (get out of Vietnam), barely legible in light-green ink:

Corneliusstr. 18 May 2014 (China raus aus Vietnam)

The first word was hard to read, but it's got to be the USA, right? The Vietnam War was, to put it mildly, not very popular in Germany (g) at least among the sort of people who paint underpasses with graffiti.

But on closer inspection, the first word turned out to be China (!):

Corneliusstr. 18 May 2014 (China)

That narrows things down. I'm sure I don't need to remind you that the last time China invaded Vietnam was in the 1788 Battle of Ngọc Hồi-Đống Đa, so this graffito is 226 years old!

On closer inspection of Wikipedia, it turns out that China invaded Vietnam (again) in 1979, during the Sino-Vietnamese War. No wonder the Vietnamese still distrust their giant neighbor

Now the question is who wrote this? Perhaps a Vietnamese. But I like to think it was a member of a tiny Marxist splinter group, perhaps the Autonome Autarke Syndakilistische-Solidaristische Volksfront.

Politics and the High Court in the US and Germany

Adam Liptak of the New York Times recently noted and lamented the fact that the decisions of the American Supreme Court are increasingly decided on explicitly partisan grounds: 

The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.

“An undesirable consequence of the court’s partisan divide,” said Justin Driver, a law professor at the University of Texas, “is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. If that perception becomes pervasive among today’s law students, who will become tomorrow’s judges, after all, it could assume a self-reinforcing quality.”

Presidents used to make nominations based on legal ability, to cater to religious or ethnic groups, to repay political favors or to reward friends. Even when ideology was their main concern, they often bet wrong.

Three changes have created a courthouse made up of red and blue chambers. Presidents care more about ideology than they once did. They have become better at finding nominees who reliably vote according to that ideology. And party affiliation is increasingly the best way to predict the views of everyone from justices to bank tellers.

The lefty in me wonders what all the fuss is about. Commentators such as Driver posit a politics-free space of legal analysis which used to exist and has been eroded in the past few decades, and that this erosion is a bad thing. You can doubt each proposition; perhaps the Supreme Court has always been a place of political contention obscured by a thick veneer of procedural legalism, and we're all better off now that the veneer's been washed away. 

But this seems a bit glib. The increasingly naked partisanship of American Supreme Court Justices is almost certainly a Bad Thing, and damages the reputation the United States internationally. Further, it's hard to see it changing anytime soon: given that (1) there are only 9 spots on the Supreme Court; (2) the ideological balance is razor-sharp, and (3) each judge literally serves for life, any President who defected from the strategy of appointing reliable votes for his party would face a huge backlash: 'Why did you appoint that squish when you could have appointed someone more reliable? Do you think the next president from the opposite party is going to return the favor? Of course not — congratulations, you've just changed the composition of the nation's highest court for the next 35 years.' 

Germany doesn't have problems this acute, since German Federal Constitutional Court (FCC) judges serve only 12-year terms. In Germany, seats on the Federal Constitutional Court are allocated according to a semi-secret agreement between the two largest political parties, the CDU and the SPD. As Maximilian Steinbeis points out in a recent entry. The judicial Selection Committee of the German Parliament is formally assigned to choose new FCC judges, but the real decision is made out of public sight long before the Committee votes. Right now, an 'SPD-associated' judge is about to retire, and the SPD gets to choose her replacement. They actually carried out a sort of audition for potential replacements. But picking judges through informal backroom agreements has its own problems (my translation):

I was always for a more public and transparent procedure for choosing FCC judges. The SPD parliamentary group's procedure thus conforms to the trend: choosing FCC judges is getting more political. The expertocratic tradition that has dominated until now — in which the search for candidates is in the hands of tight-lipped and well-connected legal politicians do thorough background checks, conduct many, many confidential discussions, and then filter out the One (and for God's sake no one else!) to present to the parliamentary party behind closed doors — this sort of thing no longer looks good.

Therefore, the plan to have judges … chosen no longer by the intransparent Selection Committee but chosen in a plenary session of the Bundestag (g) seems like an appropriate solution. Of course, nobody wants the process to become as politicized as it is in the USA, and therefore the vote should happen without public speeches. Even so, we will in the future know — for better or worse — exactly how much support each Judge had when he or she assumed office. It remains to be seem how that might affect the atmosphere in the chambers of Karlsruhe.

Steinbeis isolates the central problem here: transparency leads to political accountability, and that's precisely what you want to limit when picking judges. Until the late 1960s, the American system managed to sustain the ideal (illusion?) of neutral criteria for picking judges, but as hearings became increasingly public, the judge's political profile increased to the point where it's now dominant. And that's why Steinbeis cites America not as a model, but a cautionary example.