This week, I am in Rwanda for the premiere of the documentary film The Uncondemned.

The Uncondemned documents the legal and political path to the 1998 conviction of Jean-Paul Akayesu, the mayor of Taba Commune, Rwanda, in the first-ever conviction of rape as an act of genocide and as a crime against humanity.  The prosecution and conviction were at the International Criminal Tribunal for Rwanda (ICTR). a forerunner to the International Criminal Court.  The Rwandan Genocide occurred over about 3 months, beginning in April 1994, after the plane carrying the president of Rwanda, a moderate Hutu, was shot down. 

I was a gender consultant to ICTR in 1996 where I did the initial legal analysis of the sexual assault case against Akayesu, arguing that the indictment (for killings as acts of genocide and as crimes against humanity) against him should be amended to include charges of rape and other sexual assaults that occurred at the Taba Bureau Communale, which was under his control.  I appear in the film, along with the two American lawyers who tried the case, Pierre-Richard Prosper and Sara Darehshori. Also featured are other officials of ICTR, journalists who covered the genocide, and human rights advocates. 

Most exciting is that the three women who were the key witnesses against Akayesu are in the film, along with the Taba commune social worker who encouraged them to testify and helped to facilitate their doing so.  Those four women attended the premiere.  Their statements were the ones I was analyzing back in 1996. 

The President of Rwanda, Paul Kagame, hosted the screening of The Uncondemned in the capital city, Kigali. Also among those in attendance were the Minister of Justice, the Foreign Minister and a number of women parliamentarians. Official photos from the event are posted to the President's  Flickr album.  I am in a couple of the photos there, and my son William is one, too, near the bottom of the page.  

Photo: Professor Lisa Pruitt with two of the rape survivors, Serrafina and Victoire, who testified against Akayesu.

The Uncondemned is expected to be in distribution across the U.S. and worldwide in 2016.

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" 
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" 
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" 
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" 
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" 
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" 
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" 
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" 
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" 
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

Please note new date below.

Professor Karima Bennoune will deliver a guest lecture on February 10 in the Department of Middle East/South Asia Studies at UC Davis. The public lecture is titled, "Sidi Bouzid Blues and the Green Wave: Journeys through the Arab Spring and Fall."

The United Nations 56th Session of the Commission on the Status of Women (CSW 56) featured as its priority theme this year "the empowerment of rural women and their role in poverty and hunger eradication, development and current challenges."  This focus on rural women is long overdue, given that rural women comprise a quarter of the world's population.  Further, women provide 43% of the world's agricultural labor, and they produce half of the world's food for direct consumption.  In fact, non-governmental organizations (NGOs) discovered some time ago that women--referred to by many as the "architects of food security"--are key agents of development.  One reason for this is that when women and girls receive income, they reinvest 90% of it in their families.  In spite of their transformative potential to reduce hunger and poverty, women own less than 2% of land worldwide and they receive less than 10% of available credit.

As one whose scholarship focuses on rural livelihoods in both the United States and abroad, I was pleased to attend three days of the two-week CSW 56 event (February 27-March 9) as an observer for the American Society of International Law. As a former gender consultant for the United Nations, I was prepared for some of what I saw (e.g., bureaucracy), but the experience also held a few surprises. One thing that intrigued me about the “Session”—which is not a session at all but a dizzying array of “high-level round tables” and other meetings, panel discussions, “side events,” and “parallel events”—is that discussion of law was relatively absent. Furthermore, relatively little of the substance of these gatherings focused on rural women in a way that went beyond adding the modifier “rural” to whatever issue was being discussed. Rather than engaging with the circumstances that often distinguish rural women’s lives from those of their urban counterparts, many of the sessions seemed merely to “add rural women and stir” in relation to a well-recognized (and admittedly very important) women’s issue (e.g., female genital mutilation, child marriage). Other sessions did take up issues more central to rural livelihoods, including spatial removal from services and agents of the state, and women’s roles in agricultural production. The lack of significant engagement with the particular challenges facing rural women is reflected in the fact that none of the resolutions adopted by the Commission was about rural women. Nor did the Commission adopt any agreed conclusions on the priority theme of the 56^th Session.

In contrast to CSW’s somewhat anemic approach to the priority theme, Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) addresses the rights of rural women as a group. Indeed, CEDAW is the first human rights treaty to recognize rural difference, to acknowledge rural populations. While Article 14 guarantees to rural women all the rights enumerated elsewhere in CEDAW, the article also addresses rights specific to rural women. These include the right:

• to be involved in “development planning at all levels”;
• to benefit from “all community and extension services” among other types of education;
• to “organize self-help groups and cooperatives in order to obtain equal access to economic opportunities”;
• “to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform, as well as in land resettlement schemes”; and
• “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”

Read more about Article 14, its history, and its implementation here, here, and here. Given the particular attention paid to rural women in this germinal women’s rights treaty, one might have anticipated considerable attention to the provision and its potential at CSW 56. Not so at the sessions I attended. I heard Article 14 mentioned only a couple of times.

It is a common bias among lawyers to presume law can solve problems and should be used to do so. Lawyers may be more skeptical about whether international law is effective at solving problems, attributing failures to the lack of enforceability of international law and the lack of respect for the rule of law, particularly in the developing world. As a ruralist, I have asserted that law is less effective at addressing problems in rural locales for some similar reasons. That is, when legal institutions and legal actors (including lawyers) are literally less present, laws on the books are less potent and the rule of law withers. All of these issues related to the relevance, authority, and efficacy of law were in play—sometimes explicitly, more often implicitly—in the attention CSW 56 gave to rural women.

Many of the participants in CSW 56 were not lawyers—nor were they UN or national officials. Rather, the vast majority of participants were associated with NGOs that have consultative status with the UN Economic and Social Council. Indeed, on each morning of CSW 56, officials with UN Women held a briefing for NGO representatives (also referred to as “civil society”). By the middle of the first week, UN Women announced that 1,598 NGO representatives from 358 NGOs were engaged in the annual gathering.

At these daily briefings, UN Women officials offered affirmations to NGO representatives, assuring them of the importance of their efforts. The UN officials also offered updates on what was happening at the “high-level meetings” that few NGO representatives had permission to attend. In spite of their exclusion from many of the events where member states were in direct talks, NGOs presented a robust and varied array of panel discussions. A tiny sampling of the topics and their sponsors follows:

• Women and Corruption: Grassroots Experiences and Strategies, Huairou Commission, UN Development Program
• Empowering Caregivers to Build Healthy Sustainable Communities, Huairou Commission, GROOTS International, International Council of Women
• Rural Women's Groups and Key Stakeholders Frame Joint Actions, Government of Norway, Huairou Commission, GROOTS International, UN Women, UN-Non Governmental Liaison Service, Baha'i International Community, Food and Agriculture Organization, International Fund for Agricultural Development, World Food Program, Landesa
• Rural Women Speak: Land, Health and Rights in Africa, FEMNET
• Rural Girls and Urban Migration: The Role of Communications for Development in Bridging the Divide, UN-HABITAT, Plan International, UNESCO, Women in Cities International
• Measuring Change for Rural Women in Sub-Saharan Africa, Global Fund for Women

Here is a link to the official programming, and a full listing of the NGO programming is here.

While most commentators in these parallel and side events presumed developing world contexts, a few offered reminders that biases against women persist in the developed world, too, including in relation to agriculture. In other words, Australia, Canada, the United States (just to name a few) all have work to do to empower women, including those in rural areas. (To be clear, unlike these other nations, the U.S. has never ratified CEDAW and is not bound by it).

This sampling of events demonstrates my earlier points about both the relative absence of attention to law’s role in solving the problems of rural women (and perhaps, by implication, all women), and also the shortage of programming regarding issues unique to rural women. To the extent that the particular concerns and circumstances of rural women were center stage, the focus typically related to agriculture. Among these were issues such as access to credit and means of marketing their products, the relative merits of “sustainable” agriculture versus intensive production agriculture, and an issue that more squarely implicates law: women’s right to own land. Officials from UN Women reported that diplomats participating in CSW 56 were sharing examples of legislation that would achieve land reform and improve land distribution schemes, but in the next breath they acknowledged the challenge of getting these laws implemented and enforced.

The need for legal reform arose in other contexts, too, but so did law’s limitations. For every comment I heard about the utility of Article 14 of CEDAW (or some other progressive national or international law) and the importance of legal and policy environments that were conducive to women’s empowerment, I also heard words of caution about the limits of law. Government and UN officials were more likely to tout the power of law, while NGOs were more likely to focus on village realities that often undermine the rule of law. Among those offering caveats regarding the potency of law were those who noted that many will be reluctant to invoke it—including criminal laws—in relation, for example, to forced child marriage. One African NGO representative stated,

Face reality ... be honest. Even in America, who tells the law? Maybe [the victims and their families] are illiterate ... [child marriage] is their custom. Who goes to tell the law except the child? And how can the child go tell the law?

This is where all of us come in ... if your NGO is interested in solving these problems. You go [to the village], watch the ways things are done and then talk to the educated locals [so that they begin to see the social and economic costs of the practice, e.g., child marriage]. And they will know they must do something.

This woman, like many others I heard over three days, extolled the importance of grassroots efforts to achieve the empowerment of women.

Wherever one might strike the balance between formal law on the one hand and local, grassroots efforts to educate and achieve cultural change on the other, few coming out of CSW 56 would dispute that both have significant roles in empowering not only rural women, but indeed all women.

Originally posted to Jurist.org; cross-posted to Legal Ruralism, IntLawGrrls and Agricultural Law.

Should dictators fear, or welcome, the Internet?  I grapple with this question in a new essay, Jasmine Revolutions, forthcoming in the Cornell Law Review.  The draft of the paper is available here.

Here is the abstract for the paper:

Will the Internet help topple tyrants, or will it help further cement their control? Prominent skeptics challenge the notion that the Internet will help rid the world of dictators. They suggest that the Internet will simply serve as a new opiate of the masses, or worse, will assist autocrats in manipulating popular opinion. I defend the liberalizing promise of cyberspace. Where others have set out the value of the Internet to dissidents, I answer the main critiques of that position - that Internet activism is futile, that the Internet is simply the new opiate of the masses, and that autocrats will benefit more from the Internet than dissidents. I argue that dictators have revealed their own appraisals of the Internet: when threatened, they shut it down. Tyrants today fear the Internet more than they benefit from it. This summer’s events again confirmed this truth: On the day when the rebels marched into Tripoli, they restored Libya to the Internet.

I am currently in Budapest attending the Internet at Liberty conference sponsored by Google and hosted by the Central European University.  The conference brings together many of the world's leading activists working on Internet censorship and surveillance issues. It is being streamed live by Google here.

Google's David Drummond kicked off the event, ending his remarks by the story of an activist who had been invited to join us in Budapest, but could not. The activist explained (presumably via email) that he had sought permission to travel, but found a Kafkaesque bureaucratic response that treated words such as "Internet" and "liberty" and even "University" to be inherently problematic.  I hope the activist has found a way to stream the video, and participate virtually.

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.

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.

Parthenon General Store, Parthenon, Arkansas
(not a Census Designated Place and has no Wikipedia entry)
Photo © Lisa R. Pruitt

I started writing about rural people and places in relation to the law a few years ago, motivated in part by their near total absence from legal scholarship.  I grew up in a very rural corner of Arkansas, where most of my family of origin still lives, and it struck me that lives like theirs (and formerly mine) were largely unseen and unacknowledged by legal actors at scales other than the most local (and sometimes even by those, e.g, the Sheriff).  Rural residents comprise nearly 20% of our nation's population, but they are a forgotten fifth whose lives are in many ways different to what has become a presumptive but rarely expressed urban norm in legal scholarship.   (Katie Porter's work on bankruptcy in rural contexts is an important exception).  I started studying the legal relevance of rurality about a decade ago, and I have found so much to say that I have published only within the sub-discipline I call "law and rural livelihoods" since 2006.   I expect to spend the rest of my career exploring rural people as legal subjects and rural places as context, even if it sometimes feels as if I am writing my way into the very obscurity associated with rurality itself.

It is not surprising, then, that as a consumer of legal scholarship I find myself looking for rural people, for acknowledgment of rural difference, rural context, rural society.  Of course, rural-urban difference is not relevant to every legal issue or every piece of legal scholarship, but from time to time I come across a law review article that seems to cry out for some acknowledgment of rurality.   That happened last week when I saw on ssrn.com an essay by Jonas Lerman titled "Food Fights and Food Rights:  Legislating the 'Delicious Revolution.'"  Lerman's abstract states in part:

This Essay explores some of the civil rights and human rights dimensions of American food policy.  In particular, the Essay examines the weaknesses in America’s school lunch programs, and the problem of “food deserts” – the dearth of grocery stores and farmers’ markets in

America’s poor and nonwhite urban neighborhoods. These are complex problems, involving powerful agricultural interests, difficult public health questions, urban planning, and civil rights.

This is a nicely written manuscript about important issues that get surprisingly little attention in legal scholarship:  agricultural policy, food, and child nutrition.  But I was surprised and disappointed that in 51 pages, Lerman does not use the word "rural" a single time.   Nor does he use the word "nonmetropolitan."  The word "urban," on the other hand, appears thirteen times (more if you count the footnotes).  He talks about farmers' markets, farm policy, the Farm Bill, Farmer Barack, and occasionally plain old farmers,  but he doesn't mention the fact that a whole lot of food is grown in rural and/or nonmetropolitan areas.  He talks about what is good for cities and urban children without acknowledging rural children, their families, their nutritional needs or their communities.

On the one hand, Lerman's use of the modifier "urban" can be seen as progress.   That is, by specifying urban people and contexts, he is at least not pretending to refer to all children when his real focus is those who live in cities.  There is precision and honesty in this.  Unlike many legal scholars, he is not merely assuming the urban; he's expressing it.

Now, I do understand that urban ag, slow food, and Alice Waters are hot topics these days.  I also appreciate that even (or especially!) law review articles need a little marketing.  Still, given that food insecurity and child obesity are as much rural problems as urban ones and given agriculture's importance to rural economies, I would expect rurality might play at least a cameo role somewhere in the discussion.  (Read more about rural food insecurity and food deserts here,  here, and here.)

A few days after seeing Lerman's essay, I came across Katharine Baird Silbaugh's article,  "Sprawl, Family Rhythms and the Four-Day Work Week."   Rural people and places are more visible here, even garnering a mention in the abstract.  Here's an excerpt:

This Article seeks to highlight some of the institutional practices that influence the adoption of a four-day work week, particularly those associated with sprawl. It compares the reform to school districts that operate a four-day school week as a cost-saving measure. School systems choose a four-day week because they are rural and long distances create particularly serious time and transportation costs. This comparison helps to reveal the role sprawl and its impact on commutes plays in the four-day work week reform.

Professor Silbaugh uses "sprawl" as it is most commonly used now, to refer to a metropolitan phenomenon.  Fair enough.  Of course, the word sprawl is also an accurate descriptor of the lay of the land in rural areas.  That is, one defining characteristic of rurality is low population density--residents far flung across often vast spaces.  Kudos to Professor Silbaugh for seeing this link and acknowledging what might be seen as a rural "solution" to dealing with spatially dispersed populations:  the four-day school week.  What Professor Silbaugh doesn't do (presumably because her focus is the role that "urban sprawl plays in generating worker demand for a compressed work week and citizen demand for extended service hours") is acknowledge that the four-day work week (along with the upsides and downsides she identifies) would have similar impacts on rural families.  Not only must rural children traverse great distances to get to school, rural women (and men) must traverse them to get to work.  In fact, the rate at which rural mothers work outside the home is higher than that for their urban counterparts!  Read more here.

Of course, I appreciate (and greatly enjoy myself) the latitude that legal scholars enjoy to define their research agendas and to state the parameters of each article.  It's easy for a reader to say, "but what about ...."   Those "what about" questions can can go on endlessly, and they get in the way of the laudable goal of writing shorter law review articles.  Nevertheless, some legal issues cry out for an acknowledgment of rural difference.   Authors might ask how a given law would affect rural residents?  or whether a law would operate in the same way in rural places?

Taking our nation's rural population seriously is perhaps too much to ask as we move into the second decade of an increasingly metro-centric 21st century.  But we could at least acknowledge the very existence of rural people and places more often than we do.  In the context of legal scholarship, surely the rural experience is worth at least an occasional law review footnote.  Progressive legal scholars, who generally seek to be inclusive, could start with that.

Cross-posted at SALTLaw.org/blog.