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July 27, 2010

Report from the XVIIIth International Congress of Comparative Law in Washington

Congress 2010

I am here in Washington, D.C., at the XVIIIth International Congress of Comparative Law.

The congress is taking place all of this week, presented by the International Academy of Comparative Law and the American Society of Comparative Law, and hosted by three local law schools, American University Washington College of Law, George Washington University Law School, and Georgetown University Law Center. It is a pleasure to be among such a diverse group of jurists, lawyers, and scholars from around the world. The Academy, which is composed of academics and jurists from around the world, organizes every 4 years in different parts of the world an international congress of comparative law. From my understanding, this is the first time that an international congress has been held in the United States.

The conference got off to a great start today with an opening plenary addressing the "Role of Comparative Law in Courts and International Tribunals." The panel was chaired by the Secretary-General of the International Academy of Comparative Law and Director of the Max Planck Institute for Comparative and International Private Law in Hamburg, Dr. Jürgen Basedow. Representing views from both domestic and international courts, as well as a viewpoint from practice, the distinguished panelists discussed the role of both international and comparative law in their own courts:

Judge Rosemary Barkett

Judge Rosemary Barkett (right), U.S. Court of Appeals for the Eleventh Circuit (for whom I had the privilege of clerking), began by remarking that to some extent comparing laws has some role in all jurisdictions. She presented a historical perspective from the United States to demonstrate that the practice of considering foreign sources is rooted in the legal history and tradition of the United States, citing to the Declaration of Independence, the U.S. Constitution, and the Federalist papers, as well as to numerous opinions from the U.S. Supreme Court. One of Judge Barkett’s most important points was that, as international and comparative scholars, we need to address the definitional problems in comparative law. For example, many jurisdictions espouse allegiance to the rule of law, but what exactly does rule of law entail?

Justice Sabino Cassesse

Justice Sabino Cassese (left), of the Constitutional Court of Italy, next provided three distinct examples of courts looking beyond their own nation’s borders for insights. He emphasized that recourse to comparison by high courts is widespread, and that increasingly supreme courts are acting as comparatists. Justice Cassese emphasized two tasks for comparative lawyers and scholars: one, to examine and evaluate how judges and courts use foreign law; and two, to develop methods and procedures for comparison.

Carolyn Lamm

The presentations of Judge Barkett and Justice Cassese were followed by the practitioner’s perspective, Carolyn Lamm (right), a partner at White & Case in Washington and President of the American Bar Association. She emphasized the importance of looking to other systems for persuasive, not precedential, value. Lamm reminded us of the speech from former U.S. Chief Justice William H. Rehnquist, in a 1989 talk titled "Constitutional Courts—Comparative Remarks," in which he remarked:

For nearly a century and a half, courts in the United States exercising the power of judicial review had no precedents to look to save their own, because our courts alone exercised this sort of authority. . . . But now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.
Reprinted in Germany and Its Basic Law: Past, Present and Future, A German-American Symposium 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993).

Lamm also cited to the “Obama-Clinton Doctrine” speech that State Department Legal Adviser Harold Hongju Koh delivered to the American Society of International Law annual meeting. (additional coverage) The speech is definitely worth a read.

Judge Diego García Sayán

Judge Diego García Sayán (right), President of the Inter-American Court of Human Rights, spoke of the role of his regional court with respect to national courts in the Americas. He explained that most Latin American national courts openly and explicitly use judgments of the Inter-American court in their decisions, and that the Inter-American court also has used local and national criteria used by national courts. Judge García Sayán also remarked on the use of international law by the Inter-American court, particularly noting the influence of the jurisprudence of the European Court of Human Rights. While this influence used to be primarily a one-way street, recently the European Court of Human Rights has also looked to the jurisprudence of the Inter-American court for persuasive value.

Judge Bruno Simma

Judge Bruno Simma (left) followed by describing his experience on the International Court of Justice and his use of comparative law in an early opinion on the Oil Platforms dispute between Iran and the United States. Judge Simma warned both of the dangers that could befall a comparatist and of comparative law accidents.

The presentations were followed by a dynamic discussion among the panelists on a variety of issues, including the weight to be given to comparative law in judicial opinions and the relationship between international and comparative law.

The opening plenary was followed the rest of the day with various breakout sessions, including the delivery and discussion of general and national reports prepared for the conference. For those of you interested in comparative surveys of various legal issues, the reports should not be missed.

The conference got off to a great start yesterday. Today’s program, which will be held at the George Washington University Law School, promises to be as dynamic as this first day.

Cross-posted at IntLawGrrls.

July 25, 2010

Memoir - The Bodenheimer Saga

Brigitte and Edgar Bodenheimer were colleagues and dear friends for many of us. My relationship with them was very close. I even gave them a ride to the San Francisco Airport, and when they left on a trip, I would babysit their home. And when they first visited Davis to check out everything, I drove them around on a tour of the town.  In my entire experience with Brigitte and Edgar, they never spoke of the past. Here is some information about them that I garnered from an outside source.

Brigitte and Edgar were natives of Germany and trained as lawyers there.  Brigitte’s father, Ernst Levy, was a renowned Roman law expert. Back in the early 30’s, after reading Hitler’s book, Mein Kampf, Edgar concluded that the family should quickly leave Germany.

The family wound up in Seattle, where Ernst Levy had received an appointment at the University of Washington as a history professor. But there was a problem. Ernst did not speak English well, if at all. This was quickly remedied by Brigitte. She transliterated his written lectures so that when he read them, he was reading what appeared to be German but the sounds were coming out as English.

At the same time, Brigitte and Edgar matriculated at the University of Washington law school. Both did well. In fact, after classes, students would assemble around the outgoing Brigitte to discuss what went on in the class lectures, while reticent Edgar would stand on the periphery and listen attentively. On one occasion, Edgar suddenly spoke up to disagree with what Brigitte had stated.  He cited the exact page and words from the casebook to emphasize his disagreement.  Edgar obviously had a photographic memory. The students then started gathering around Edgar.

From Seattle, the Bodenheimers moved to Washington, D.C. where eventually Edgar wound up on the staff of the prosecution at the Nuremburg Trials. From there, the Bodenheimers went on and joined the law faculty at the University of Utah where they did very well. But the siren song of Davis lured them to the new UCD law school and they became part of the founding faculty. We talked about many things, which was easy to do since our offices were near each other. Edgar helped me by evaluating a program that my son wished to join. Brigitte helped me much with great input on family law issues, especially childrens’ rights, that I was researching. But never was there any referring to what I state above. This was related to me by Marian Gallagher, the law librarian at the University of Washington, who knew the Bodenheimers well too.

One further item. Edgar specialized in legal philosophy, but he also taught a class in Equity law, which at the time was emphasized on the California Bar Exam. After the exam books were graded, the State Bar would send reports to each law school indicating how their students did on the various subjects covered by the exam. Edgar’s students always did very well above average. His scores usually put him at or near the top when compared to our other UCD teachers. This I remember well because I was always amazed that a philosopher could handle so well a basic subject like Equity.

July 22, 2010

Bullet Points on the Late Uproar, Plus a Footnote on Macro

Herewith I reprint the substance of a couple of posts from my own blog (link, link); in one, I try to pull together some thoughts on the late (uproar, meltdown,economic event, clustermuck, whatever we call it); in the other I add a footnote about my own frustration with the economic debate over macro policy.

First--always willing to punch above my weight, I unburdened myself before a bunch of bankruptcy lawyers the other day on the issue of how we got into this economic mess, with a few tentative jabs at the issue of how we might get out.  Always happy to oversimplify, I offered these bullet points:

  • Housing Bubble or--? I think this one almost answers itself. Housing peaked in 2006; banks didn't melt down until 2008. So, a housing bubble that put a spear into a fragile and vulnerable banking system. Note that this is the first financial crisis top metastasize since 1931.
  • Liquidity or balance-sheet? Bankruptcy lawyers grasp this one: "bankruptcy insolvency" v. "equity insolvency." As phrased, the question again probably tips the hand of the answerer. We had the mother of all liquidity crises in 2008, but we've got a balance-sheet problem that looks like it will stick around for years.
  • How did we get where? "Bleeding Gums" Murphy or Banana Republic? The "Bleeding Gums" school holds that it was all the fault of the undeserving poor who wanted to become the undeserving rich and took on loans they could not possibly repay, thereby destroying the world financial infrastructure (they had help from Jimmy Carter, Chris Dodd and Barney Frank). The Banana Republic school holds that we've become a nation where a small and entrenched elite has come to regard the government as its dedicated honey pot. I suspect there is at least enough truth in either of these views to offend those who embrace the opposite.
  • What do we do next? As in: do we slash the budget or turn on the printing press? This is the pairing that I find hardest to reduce to a soundbyte. But it is the utter discontinuity on this issue--the array of respectable professorships on each side of the case--that does most to enhance the suspicion (a suspicion that I do not embrace)--the suspicion that economics has not yet advanced beyond the realm of campfire fairy tale.

I shared the platform with a working bankruptcy judge who described to us in edifying detail how much his life is dominated by the busted-up mortgage and how he doesn't see any end of it in sight. We passed on discussing the Financial Reform Act; I can't speak for my colleague but I figure it will be another year before we know how completely the lobbyists defang it in rule-making. I did hear somewhere, however, that Mary Schapiro has already said she'll need another 500 employees at the SEC. Insert your own stimulus joke here.

--

The next day I added:

I'm still puzzling over the scandal of economic theory that I was mulling over yesterday--the other discontinuity of view between competing schools of macro policy. That would be: the view(s) that (a) we've got to juice more into the system; or (b) we've got to cut, cut, cut. I tend to ally myself with those of my betters who propound the juice theory. And I'd certainly agree that the cut school is heavily populated with the terminally ignorant: people who don't seem to have the most primitive notion of how an economy works, and who are disposed to use government policy of any sort as a focus for their resentment (particularly when propounded by a suspected Kenyan).

But even a blind hog finds a few acorns and an idea has a truth value independent of the person who embraces it. Even if it is not the right remedy for the moment, still the cutter school has defenses or justifications far more sophisticated and plausible than what you are likely to hear on talk radio.

What is lacking, so far as I can tell, is anywhere near enough candid and responsible dialog between grownups who ought to know better. I'm willing to give the yahoos a bye; I'm happy to excuse politicians (at least provisionally) from the class of those who know better. That leaves a tranche--maybe two tranches--of impressively trained professionals who can fashion analytic advocacy of great sophistication, and marshal formidable batteries of data in their support. But they gaze across the void with an attitude of suppressed indignation (the cutters) or ironic indifference (the juicers). On both sides, it is unworthy of them. We the wide-eyed and gap-jawed outsiders deserve better.

July 21, 2010

Intuit just won't quit

Here we go again. Another legislative session, another well-funded campaign waged by Intuit Corp. to abolish California's free, innovative and wildly popular electronic tax filing programs, ReadyReturn and CalFile.

These two programs provide California taxpayers with a reliable, voluntary, safe and free way to calculate and file their taxes. ReadyReturn offers an already completed state tax return using information in the state's possession (from a W-2, for instance) as a starting point. It's for single filers whose income, up to $240,000, comes only from wages. CalFile offers free, interview-style online filing for somewhat more complicated tax situations. It's for married as well as single taxpayers with incomes up to $320,000. The state estimates that 6.4 million Californians are eligible for these services—more than 40% of the state's taxpayers.

As state programs go, these two count as successes. ReadyReturn, for instance, has been available for five years (CalFile for more than eight) and boasts user satisfaction above 98%. In fact, the Franchise Tax Board maintains a Web page featuring unfiltered direct quotes from users expressing their gratitude and appreciation for the program: "Great service ... takes the stress out of taxes!"; "LOVE LOVE LOVE this service"; "this system rocks!"; and "THIS IS THE BEST SERVICE I HAVE EVER SEEN BY THE GOVERNMENT." Moreover, the state continues to enhance its offerings. Over the next year, it plans to launch a cutting-edge, e-security platform.

ReadyReturn and CalFile also save taxpayers and the state money. The FTB estimates the two programs save taxpayers between $4 million and $10 million in fees for figuring and filing their taxes, while also netting the state $500,000 annually in reduced processing and administrative costs. If Intuit gets its way, a large portion of the taxpayers' savings will evaporate because many people would turn to preparers or to fee-based software for help. Indeed, the FTB estimates that 45% of current ReadyReturn and CalFile users (roughly 130,000 taxpayers) would not qualify under Intuit's plan. Millions more, currently eligible but not yet participating in the state's free e-filing services, would never have an opportunity to experience the programs' benefits. If a significant number of these taxpayers turn to paper returns, the state stands to lose its savings as well. (Paper-filed returns cost $2.59 to process versus 34 cents for e-filed returns.)

Despite the success and savings of ReadyReturn and CalFile, Intuit wants both programs to disappear—badly. It manufactures TurboTax, and it's leading the fight to replace the state's free tax filing programs with its and other software manufacturers' programs. The upside is that the software industry would conveniently combine state and federal filing. The problem is, these combo deals would cover just a fraction of the Californians eligible for the state's existing programs. If Intuit, for example, matches in California what it offers in other states, it would only cover taxpayers earning up to $31,000. And the software would be merely a stripped-down version of what others pay for. (This kind of minimalism in the free federal filing program has caused Sen. Charles E. Grassley (R-Iowa) to claim that taxpayers would be "better off with a pencil and an abacus").

Most importantly, Intuit is offering nothing that California doesn't already have. The state has arranged with other tax software providers to do exactly what Intuit proposes: Help low-income folks fill in and file state and federal returns for free—although Intuit refuses to participate. It apparently only wants in on this deal if the state knocks out its free programs, thereby creating a larger potential paying customer base for TurboTax.

Not surprisingly, Intuit has been greasing the wheels in order to try to sell its scheme in California. Since 2005, public filings indicate that Intuit has spent $1.25 million on lobbyists in the state. Over the same period, it contributed an additional $2.12 million to statewide campaigns, including more than $1 million to state Sen. Tony Strickland (R-Thousand Oaks), a ReadyReturn foe who is running for state controller. In all, Intuit has doled out cash to nearly 120 politicians.

The impact has been clear, even if Intuit hasn't gotten its way—yet. As documented in The Times, in 2009 California Republican legislators held back their votes on 20 bills in an attempt to do the corporation's bidding and force the abolition of ReadyReturn and CalFile. They didn't succeed in killing the tax programs, but they did kill funding for domestic violence shelters, police and fire departments, and prevention of swine flu outbreaks.

And now Intuit is adding Democrats to its target list, according to party staffers. It's hired lobbyists to work specifically with members of the majority party.

Abolishing ReadyReturn and CalFile would hurt Californians. Intuit's alternative would cover fewer taxpayers and provide fewer services; it would cost individuals millions of dollars in preparation fees (much of which Intuit wants to pocket); and it would kill two programs that actually save the state money.

It doesn't add up for anyone. Except Intuit.

Cross-posted from the Los Angeles Times Op-Ed section.

July 15, 2010

Corporate Governance Reforms in India


Bombay Stock Exchange, by Appaiah

So I've been away for a while with a research trip to India and then madly trying to finish a couple of papers related to the trip. Before I left, I blogged about some of Vice Chancellor Strine's comments during his lecture at Stanford's Rock Center for Corporate Governance. I think that some of Chancellor Strine's comments on the efficacy of independent directors should be a warning for those pushing for corporate governance reforms in other countries. I have written previously about the potential pitfalls of importing US-style corporate governance rules with respect to India. I've now posted another paper entitled "The Promise and Challenges of India's Corporate Governance Reforms" which addresses some of the recent reform efforts following the Satyam scandal and the continuing barriers for effective corporate governance. The paper is forthcoming in the inaugural issue of the Indian Journal of Law and Economics.

Recently, there has been some very interesting work on independent directors in India, particularly arising out of unprecedented independent director resignations following the Satyam scandal. The Indian corporate law blog has a very useful post about recent academic literature on corporate governance norms, including the value of independent directors, in India. For those interested in India, all of the papers are worth a careful read.

I think that while the independent director model has much to recommend, there are serious constraints to the model for the Indian context. There is a danger that simply pushing for independent directors will not fully address some important corporate governance concerns in India, particularly the pervasive influence of promoters and controlling stockholders. Others, in particular Umakanth Varottil, have also written on this issue. I highly recommend Umakanth's recent paper entitled "Evolution and Effectiveness of Independent Directors in Indian Corporate Governance" for anyone who is interested in corporate governance reforms around the globe.

I'll soon be posting more on other projects related to this trip to India, including a paper on outbound M&A by Indian firms. Stay tuned…

Cross-posted at M&A Law Prof Blog.

July 11, 2010

The Grim Sleeper and DNA: There's much to be concerned about

Even if DNA evidence proves crucial to cracking to case of a serial killer, the use of such evidence is outpacing laws regulating it.

DNA evidence was undeniably the key to the arrest and charging of Lonnie David Franklin Jr., believed to be the Grim Sleeper responsible for a string of slayings in Los Angeles between 1985 and 2007. Many will cite this use of DNA evidence in a high-profile serial murder case as one more reason to increase reliance on this important investigative tool. But in fact it's precisely at a moment like this when an investigative triumph can blind us to the dangers of expanding genetic surveillance.

There were actually three different uses of DNA evidence in the Grim Sleeper investigation that we should be concerned about. They all turn basic assumptions about our criminal justice system on their heads. The first is the use of familial DNA searches. Most of the time, investigators search state DNA databases to find a complete match linking a particular person's DNA profile to crime scene evidence. Familial matches are different. A "hit" in the database establishes definitively that the person in the database is not the wanted suspect, but suggests that it is one of his or her relatives.

Why is this problematic? Keep in mind that in usual police "searches," there must be individualized probable cause for suspicion, as required by the 4th Amendment. With familial searches, the only reason the police identify their suspect is because he is genetically related to someone in a DNA database. If that sounds like guilt by association, it is. Why should the mere inclusion of one of your family members in a DNA database mean that you might be a target of an investigation one day?

The second investigative technique used in the Grim Sleeper investigation was the use of "abandoned" or "discarded" DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

The third use of DNA in the investigation is unlikely to receive much fanfare; it wasn't successful. Yet it is equally dangerous to civil liberties. Two years ago, LAPD vice officers arrested a number of suspected johns not as part of a crackdown on prostitution but rather for the purpose of collecting their DNA. (Many of the Grim Sleeper's victims were prostitutes.) Such a technique is known as a DNA dragnet. As of January 2009, Proposition 69 allows the state to collect DNA not just from those convicted of felonies but also from all people who have simply been arrested on suspicion of committing felonies. Atty. Gen. Jerry Brown's formal approval of familial searches is still limited to searching profiles of convicted felons in special cases, but it's not hard to imagine an expansion to all cases regardless of severity, and to arrestee profiles as well.

There's no doubt that DNA evidence gives the police an important tool. Without it, the Grim Sleeper case would probably be yet another unsolved case. The trouble is that we are rushing forward with these uses of DNA evidence with little consideration of the ever-increasing scope of genetic surveillance over our citizens. Many states that have not formalized their policies in these areas have taken note of what the police did in this case. What matters isn't just that this particular fish was caught; it's the ever-widening net over us.

Elizabeth Joh, a professor at the UC Davis School of Law, has written widely about DNA evidence, undercover policing and police privatization.

Cross-posted from the Los Angeles Times.

July 11, 2010

Yep, That's What We Strive For

Overheard in a coffee shop near a law school:

...post-Socratic stress disorder.


Could be right.

 

Crossposted at Underbelly.

July 7, 2010

Time Magazine Finds Humor in "Dot Head"; Forgets Navroze Mody

The most read and the most emailed piece on the Time Magazine site right now is Joel Stein's "My Own Private India." In it Stein says that the increasing presence of Indian-Americans in his hometown of Edison, New Jersey "bothers[] me so much."

Faced with a flurry of criticism, Time Magazine has now posted the following non-apology apology:

TIME responds: We sincerely regret that any of our readers were upset by Joel Stein’s recent humor column “My Own Private India.” It was in no way intended to cause offense.

The apology does not in fact concede that there is reason for offense. That was not the "intent[]" of this "humor" piece.

Perhaps the most serious error in the piece is that it is an ostensible humor piece lacking any humor. What is most galling, however, is that this ostensibly serious news magazine fails to have any sense of history.

Stein writes:

My town is totally unfamiliar to me. The Pizza Hut where my busboy friends stole pies for our drunken parties is now an Indian sweets shop with a completely inappropriate roof. The A&P I shoplifted from is now an Indian grocery. The multiplex where we snuck into R-rated movies now shows only Bollywood films and serves samosas. The Italian restaurant that my friends stole cash from as waiters is now Moghul, one of the most famous Indian restaurants in the country. There is an entire generation of white children in Edison who have nowhere to learn crime.

Perhaps if magazines like Time had spent more time on better reporting, the editors would have recognized the obvious logical and historical error in this "funny" paragraph. The "white children" in Edison inclined towards crime could now practice their craft on Indian Americans.  Indeed, this was the case in the 1980s suburban New Jersey, the passing of which Stein laments.

Back then, folks like Stein's friends not only harassed Indian Americans as "dot heads," they also physically attacked them.  As the Harvard Pluralism project reminds us:

in 1987, a thirty-year-old Indian immigrant bank manager, Navroze Mody, was beaten to death by a gang chanting "Hindu, Hindu!" A group which called itself the "Dot Busters," which included local teenagers, had been targeting the hard-working community of Indian immigrants with low-level harassment for months. The "dot" referred to the bindi Hindu women wear on their foreheads.
In July of 1987, a month before Mody's death, a local newspaper called attention to the rising number of harassment incidents. In response, it received a letter, signed "Jersey City Dot Busters:"
"I'm writing about your article during July about the abuse of Indian People. Well I'm here to state the other side. I hate them, if you had to live near them you would also. We are an organization called dot busters. We have been around for 2 years. We will go to any extreme to get Indians to move out of Jersey City. If I'm walking down the street and I see a Hindu and the setting is right, I will hit him or her. We plan some of our most extreme attacks such as breaking windows, breaking car windows, and crashing family parties. We use the phone books and look up the name Patel. Have you seen how many of them there are? Do you even live in Jersey City? Do you walk down Central avenue and experience what its like to be near them: we have and we just don't want it anymore. You said that they will have to start protecting themselves because the police cannot always be there. They will never do anything. They are a week race Physically and mentally. We are going to continue our way. We will never be stopped."
In Jersey City, a few weeks after Mody's death, a young resident in medicine, Dr. Sharan, was assaulted by three young men with baseball bats as he walked home late one night. One of the young people yelled, "There's a dothead! Let's get him!" as they set out with their bats. Sharan was beaten severely and left unconscious with a fractured skull. He was in a coma for a week, in the hospital for three weeks, and suffered permanent neurological damage.

A search on Time's website of its content in the 1980s and 1990s reveals no mention of the "Dot Busters" or of Navroze Mody—though perhaps the archive is not as comprehensive as it appears (or, more likely, the search engine is not particularly good). A group of thugs terrorized a particular group in the country on account of its race or national origin or religion—even going so far as to kill someone—and the country's major newsmagazine seems to have failed to find it worthy of significant attention.  As a child growing up in a far more gentle environment in 1980s Ohio, I learned of the terror of the "Dot Busters" from Indian-American media.

A review of the last ten columnists published by Time Magazine reveals that 100% of them are white, and only 10% are female. Newsweek can boast the powerful writing of Fareed Zakaria (who was conservative enough to support the invasion of Iraq). Perhaps Time should apologize to the Indian-American community by replacing Stein with an Indian-American columnist. Kal Penn, who has the added virtue of actually being funny, would be ideal (see his punchy putdown of Stein's column).

Cross-posted at Colored Demos.

July 5, 2010

Lessons in Development and Democracy: From India to West Virginia


Photo © Lisa R. Pruitt 2010

The closing line of my recent blog post asked: "Is even democracy a luxury for the poor?"

Shortly after writing it, I came across this quote by Senator John D. Rockefeller IV, featured in the obituary of Senator Robert C. Byrd who died last week. Regarding the vast federal aid that Byrd garnered for West Virginia over the years, Rockefeller said Byrd knew that “before you can make life better, you have to have a road to get in there, and you have to have a sewerage system.”

This comment resonated with me, struck me as accurate. Yet it ran counter to my thinking about Robert C. Byrd for the past few decades. While I have always considered Byrd a fine man (well, aside from his Klan membership as a younger man) and appreciated his dedication to the Senate, I saw him primarily as a poster child for the excesses of pork barrel politics. Rarely was he in the news, it seems, without some mention of the federal aid he was able to channel to West Virginia. Indeed, his obituary in the New York Times states that he built, "always with canny political skills, a modern West Virginia with vast amounts of federal money." Elsewhere, it includes this quote from Senator Byrd himself, “I lost no opportunity to promote funding for programs and projects of benefit to the people back home.” He referred to West Virginia as "one of the rock bottomest of states."

Rockefeller's comment, however, reminded me of what was at stake with all that aid for West Virginia. It was not only welcome centers and courthouses and such. It was the state's development from an economic backwater, which requires roads and bridges. As Rockefeller observed, advanced sanitation makes a big difference, too. Indeed, it goes hand in hand with education and other health and human services in enhancing the state's human capital.

The quote from Rockefeller also reminded me of this provocative line from Aravind Adiga's The White Tiger (2008): "If I were making a country, I'd get the sewage pipes first, then the democracy." The White Tiger is a story from the other side of the world—from India—but it is related to what Byrd tried to do for West Virginia in several senses. The Indian story—like the story of many West Virginians—is about rural poverty. Its social, geographic, and economic context is the uneven development that has left rural India's residents behind while much of the rest of the nation zooms ahead in the name of progress (and, of course, capitalism). Parallels to rural West Virginia are apparent.

India - Sights & Culture - rural transport truck
Photo by McKay Savage

We city dwellers don't think much about sewage pipes. We take them for granted. But lots of people in the U.S. and in India don't have them. Indeed, some don't even have clean water. (Read U.S. stories here and here.) When those living in metropolitan areas fret about roads, it is about getting a car pool lane, or sound walls, or even a whole new freeway. In rural areas, residents fret about how to get your (dirt) road graded, never mind getting it paved. (Read stories about the economic significance of road building in India, too, here and here).

Both the Rockefeller and Adiga quotes suggest the power of government to lift people out of poverty—perhaps even the nation state's duty to do so. If we agree that the government should play a role in responding to deprivation, is it fair for West Virginia to get more federal aid (assuming that it does on, say, a per capita basis) than, for example, Pennsylvania or Washington or Florida? Wouldn't it represent distributive equity to give West Virginia and similarly deprived states more? Of course, the Indian Constitution recognizes some socio-economic rights, e.g., the right to life, which has been construed to obligate the state to provide a certain healthcare and education infrastructure. The U.S. Constitution makes no similar provision, protecting only civil and political rights. (Yet, as Robert Byrd once pointed out, "The Constitution does not prohibit humble servants from delivering whatever they can to their constituents").

Constitutional and other legal mandates aside, the question remains: what should government do in the face of grossly uneven development and the resulting spatial inequalities in access to infrastructure and services? What is just and ethical? I've been writing recently about Amartya Sen and Martha Nussbaum's capabilities framework for assessing well-being, including their thinking about government's role in endowing residents with core capabilities such as those life and bodily health. I'm recalling Sen's use of the phrase "antecedent inequality" to justify giving more to those with less, to raise them to a sort of parity with the "haves." That has me reflecting on Robert Byrd's career a little differently than I previously had. I'm now wondering: is it really "pork" if it responds to antecedent inequalities? If getting sewage pipes into rural places—be they in West Virginia or India—helps rural residents achieve a minimum level of well-being, shouldn't we be doing it?

To circle back to democracy for a moment, consider this quote from Sen about the very nature of development:

Development consists of the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency.

That leaves me wondering: At what point are citizens so deprived of what they need to survive—what Nussbaum refers to the as the life and bodily health capabilities—that they are effectively incapable of exercising the civil and political rights so valued by liberal democracies. Isn't the lack of sewage pipes and other basic infrastructure an "unfreedom" that cries out for development—whether in India or West Virginia?

Cross posted to SALTLaw.org/blog and Legal Ruralism.