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Pursuing Accountability for Perpetrators of Intimate Partner Violence: The Peril (and Utility?) of Shame
Get PDFThis Article explores the use of shame as an accountability intervention for perpetrators of intimate partner abuse, urging caution against its legitimization. Shaming interventions—those designed to publicly humiliate, denigrate, or embarrass perpetrators or other criminal wrongdoers—are justified by some as legitimate legal and extralegal interventions. Judges have sentenced perpetrators of Intimate Partner Violence (“IPV”) to hold signs reading, “This is the face of domestic abuse,” among other publicly humiliating sentences. Culturally, society increasingly uses the Internet and social media to expose perpetrators to public shame for their wrongdoing. On their face, shaming interventions appear rational: perpetrators often belittle, humiliate, and disgrace their partners within a larger pattern of physical abuse, and survivors often report feeling an abiding sense of shame as a result. Further, perpetrators are assigned en masse a dominant narrative about their motivations and traits as controlling, violent, and beyond reform. Consequently, they are cast into a category of individuals for whom traditional forms of rehabilitation are identified as ineffective and for whom shaming may be particularly apropos.
However, even if stigmatizing perpetrators to achieve accountability has some legitimate purpose, any benefit is outweighed by the fact that shaming perpetrators undermines the goals of violence reduction and survivor safety. Internalized shame can lead to externalized violence, thereby increasing, rather than decreasing, a survivor’s risk of harm. Further, using shame to punish an act that is itself built on shame can blur clarity about socially acceptable behavior, have a profound social and economic impact on the individual shamed, and devastate a person’s dignity and sense of self-worth. Moreover, many perpetrators have cumulative shaming experiences in their pasts, intensifying the negative consequences that can flow from shaming interventions. To understand the unique risks of shaming in the context of IPV, this Article explores shame as a tool for achieving perpetrator accountability
Rescission of a Previously Designated National Monument: A Bad Idea Whose Time has Not Come
Get PDFPresidents cancel or modify executive orders and proclamations issued by prior Presidents all the time. What is not so clear is whether this presidential discretion applies to orders or proclamations issued at the direction of Congress, as is the case with national monuments designated by presidential proclamation under the authority of the Antiquities Act. Section 431 of that Act authorizes the President to declare by public proclamation “historic landmarks, historic and prehistoric structures and other object of historic or scientific interest” on public land and to reserve sufficient public land to properly care for and manage the protected objects. While over the law’s 111 years, disgruntled states, interest groups, and individuals have challenged some of these proclamations, no President has ever rescinded a designation made by a prior President, let alone even threatened it, until President Trump proposed doing so this year.
This Article suggest that the fact that Congress has placed its imprimatur on the designation process shields it from whimsical actions by later Presidents seeking to rescind or shrink the size of previously designated national monuments. To conclude otherwise would contradict the plain language of the statute, which would give Congress plenary power over the designation process and would aggregate to the President powers he does not have, thus creating separation of powers concerns. Nor can Presidents simply elect not to enforce a law because it is not to their liking. Allowing Presidents to revoke prior monument designations would create substantial uncertainty about the legal force and effects of such proclamations once made. This uncertainty, in turn, would affect expectations about how the designated land should be managed and inhibit future designations. It would also adversely affect local economic growth and regional adjustments in response to designations
Group Rights, Group Intentions, and the Value of Groups
Get PDFThis paper is part of a symposium on Berel Lang’s 2016 book Genocide: The Act as Idea (University of Pennsylvania Press). While agreeing with much of Lang’s important argument about the moral significance of criminalizing genocide as a crime against groups, I raise several objections and questions. Lang ties the crime of genocide to group rights, specifically the right of groups to exist in the future; I argue that the concept of group rights obscures rather than clarifies the crime of genocide. What matters is not the rights of groups but the value of groups, both to their members and to non-members. The two leading accounts are those of Arendt and Lemkin, one pluralist and one universalist, and Lang leaves the issue dividing them unresolved. He also neglects an important objection to the criminalization of genocide, namely that placing so much emphasis on groups invites just the kind of tribalist mentality that fosters genocide. Finally, I raise doubts about Lang’s claim that anyone who commits genocide knows it is wrong
Property and the Construction of the Information Economy: A Neo-Polanyian Ontology
Get PDFThis chapter considers the changing roles and forms of information property within the political economy of informational capitalism. I begin with an overview of the principal methods used in law and in media and communications studies, respectively, to study information property, considering both what each disciplinary cluster traditionally has emphasized and newer, hybrid directions. Next, I develop a three-part framework for analyzing information property as a set of emergent institutional formations that both work to produce and are themselves produced by other evolving political-economic arrangements. The framework considers patterns of change in existing legal institutions for intellectual property, the ongoing dematerialization and datafication of both traditional and new inputs to economic production, and the emerging logics of economic organization within which information resources (and property rights) are mobilized. Finally, I consider the implications of that framing for two very different contemporary information property projects, one relating to data flows within platform-based business models and the other to information commons
Human Rights in Global Health Governance
Get PDFHuman rights frame global health governance. In codifying a normative foundation for global governance in the aftermath of World War II, states came together under the auspices of an emergent United Nations (UN) to develop human rights under international law. Human rights law, establishing international norms to advance global justice, has thereby become a universally accepted framework for global health, and the past seventy years have witnessed an evolution of international human rights law to define the highest attainable standard of health. Conceptualizing health disparities as rights violations, these health-related human rights offer universal standards to frame government responsibilities for the progressive realization of health and facilitate legal accountability for health policy. Where globalizing forces have created an imperative for global governance institutions to meet an expanding set of global health challenges, human rights have come to guide institutions of global health governance.As rights-based approaches have become fundamental to global health governance, the proliferation of global governance institutions has warranted a wider sharing of human rights responsibilities for health beyond the UN human rights system. Institutions of global governance are not only seen as instrumental to the development of international human rights law but also as essential to assuring the implementation of rights-based obligations in a rapidly globalizing world. Over the past twenty-five years, the UN has sought to formalize these human rights implementation responsibilities across the entire global governance system. Translating international law into organizational action, global governance institutions seek to “mainstream” human rights across their policies, programs, and practices. To understand the ways in which human rights are realized in global health, this Special Issue of Global Health Governance examines the role of global health governance institutions in structuring the implementation of human rights for public health
Humanitarianism as a Weapons System
Get PDFOne important theme in Rosa Brooks’s How Everything Became War and the Military Became Everything is that in Iraq and Afghanistan the United States has increasingly given the military reconstruction tasks that seem more like civilian jobs. This is part of the pivot to a “hearts-and-minds” counter-insurgency strategy; but in larger part it reflects our great trust in our military and diminishing trust in civilian government. The result is a vicious circle: As resources shift from civilian agencies to the military doing similar jobs, the civilian agencies become less effective, which seems to vindicate the judgment that the military can do it better. In this reflection, I suggest that alongside the vicious circle that concerns Brooks, another problem with using the military for civilian tasks is that the moment strategy changes away from “hearts and minds,” the military will abandon the civilian jobs. Thus, the moral character of the work is different. I use Phil Klay’s reality-based short story “Money as a Weapons System” and the career of T. E. Lawrence to illustrate the point
Good Person, Good Prosecutor in 2018
Get PDFNearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?” I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord—at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018
R2H and the Prospects For Peace: An Essay on Sovereign Responsibilities
Get PDFThis essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the interests of those outside their sovereign territory as well as those of the of their own people – in particular, the shared interest in subduing dire threats to world peace.
Responsibility to humanity raises practical as well as philosophical questions. Some may fear that R2H would become a Trojan horse for powerful interests wishing to impose their will on the less powerful. The essay argues that these fears misunderstand what R2H requires. Alternatively, R2H may sound preposterously utopian, in an era of waning trust in internationalism and an upsurge of reactionary nationalism. In response, I argue that reactionary nationalism is itself a dire mistake – a symptom of our current ills, not a cure
Deliberative Constitutionalism in the National Security Setting
Get PDFDeliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.
Such requirements would seem to be especially important in the national security setting, where decisions can have profound life-and-death consequences. Yet this is the setting in which transparency often is least feasible on the part of the Executive branch. Officials may be constrained for good reasons from fully explaining the bases for their decisions. While such reason-giving is especially important to the perceived legitimacy of a decision, anticipating the need to provide it also can enhance deliberative rigor. Limited transparency thus creates the risk both that crucial decisions may not be regarded as legitimate, and that the deliberative process will not be as robust as it should be.
In this chapter, we argue that ensuring robust internal deliberative processes in the national security setting can compensate at least to some degree for this limitation. Appreciating the demands of deliberative democracy theory can help inform this process by illuminating how various procedural mechanisms may promote the goals that transparency purports to serve. We focus on the Lawyers Group, which includes senior national security lawyers from across the government, as an example of an arrangement that can help further the ends of deliberative democracy by providing a vehicle for deliberation that meets many, even if not all, of the requirements of that theory. Coordinated by the legal advisor for the National Security Council, this group discusses national security issues that will be presented to the President.
We regard our analysis as contributing in two ways to deliberative democratic theory. First, it focuses on the possibility of satisfying the requirement of this theory in a setting in which decision-making often falls short of the demands of full transparency. Second, it suggests how legal analysis may play a distinctive role in the deliberative process.
There are limits to what the Lawyers Group can accomplish. We believe, however, that it should be assessed in terms of its contribution to the larger national security deliberative system of which it is a part. From this perspective, the Group’s compliance with several prescriptions of deliberative theory helps it strengthen, even if it does not guarantee, the rigor and persuasiveness of the justifications that the President is able to provide for national security decisions
Interpretation and Construction in Contract Law
Get PDFInterpretation determines the meaning of a legal actor’s words and actions, construction their legal effect. Although the interpretation-construction distinction has a long pedigree, contract scholars today rarely attend to it, and the relationship between the two activities remains understudied. This Article provides an account of the interplay between interpretation and construction in contract law.
It begins with the history of the concepts, focusing on the works of Lieber, Williston and Corbin. It adopts Corbin’s complimentary conception, according to which interpretation alone never suffices to determine speech act’s legal effects; a rule of construction is always required. The Article departs from Corbin, however, by arguing that contract law recognizes multiple types of meaning, and therefore calls for different types of interpretation. Legally relevant meanings include plain meaning, contextually determined use meaning, subjective and objective meanings, purpose, and the parties’ beliefs and intentions. Which type of meaning is legally relevant when depends on the applicable rule of construction. Consequently, although interpretation comes first in the process of determining parties’ legal obligations, the correct approach to legal interpretation is determined by rules of construction. The Article identifies two additional ways construction can be said to be prior to interpretation in contract law. First, judicial acts of construction can attach to contract boilerplate standard legal effects that depart from the words’ ordinary meaning, turning them into a legal formality. Acts of construction can thereby give boilerplate new semantic meanings, to which interpretation must attend. Second, when parties choose their words in light of their legal effects, rules of construction often figure into their communicative intentions. Rules of construction can therefore also be prior the pragmatic meaning of what parties say and do.
Understanding this complex interplay between interpretation and construction is essential to understanding how the law determines the existence and content of contractual obligations. Although this Article does not argue for one or another rule of interpretation or construction, it lays the groundwork for analyses of which rules are appropriate when