PILAC report finds doctors may risk prosecution for treating alleged terrorists

Doctors who provide medical assistance to people labeled terrorists are increasingly vulnerable to prosecution in the United States and other Western democracies, according to a law briefing by the Harvard Law School Program on International Law and Armed Conflict (PILAC).

Credit: U.S. Navy/Shantece Gonzalez

The 236-page report highlights the prosecution of an American physician who offered to work as an “on-call” doctor for wounded members of al-Qaida in Saudi Arabia. The report also details the prosecution of a Peruvian doctor who cared for members of the Shining Path guerrillas, and of a physician who provided medical and surgical services to insurgents in Colombia.

The cases underscore the effects the global war on terror can have on the international humanitarian law that protects doctors who tend enemy combatants from punishment or prosecution.

Released earlier in September, this is the first comprehensive report to examine how counterterrorist policies threaten to erode international humanitarian law protecting medical care for wounded combatants in armed conflicts.

Credit: Evgenia EliseevaGabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School, is faculty director of PILAC and co-author of the program’s law briefing released earlier in September.

Those safeguards have been around since the establishment of the Red Cross in 1863, said Gabriella Blum, one of the report’s authors and the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.

But the new report’s authors contend that the law has been weakened by the war on terror and the United Nations Security Council’s antiterrorist directives.

“The whole raison d’etre behind the establishment of the ICRC [International Committee of the Red Cross] was to make sure that those who are injured and no longer fighting are not left without medical treatment,” said Blum. “This is the fundamental principle we should focus on.

“And the fact that you then label that person a terrorist, at that moment, it shouldn’t matter,” she said. “At the time he’s injured and is in need of medical care, it doesn’t — at least, it shouldn’t — matter.”

Blum, who is also the PILAC faculty director, co-authored the report with Dustin Lewis, program senior researcher, and Naz K. Modirzadeh, program director and lecturer on law.

Titled “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” the report criticizes the U.N. Council, which in the late 1980s spearheaded the global war on terror.

PILAC founding director Naz K. Modirzadeh is a lecturer on law at HLS and co-author of the report.

The Security Council, the report says, moved without “due public consideration” in legislating global antiterrorism measures that contradict international humanitarian law. The council, for instance, requires member states to take action against terrorist threats but fails to demand that states exempt impartial wartime medical care even when such care may be protected under international humanitarian law.

The report says there are gaps in the law that allow states to make their own rules to fight terrorism. Also, international humanitarian law lacks protection for all aspects of medical care, and its measures are not universally applicable to all armed conflicts or followed by all countries.

“We’re left today with a somewhat fragmented normative landscape, where different countries have different obligations,” said Lewis. “Today, with few exceptions, the United States can prosecute any physician, whether she is American, French, or Somalian, who knowingly provides medical assistance to terrorists.”

Since 1949, when the First Geneva Convention ruled that no one could be convicted for having nursed the wounded or sick, regardless of his nationality or conduct, no major directive addressing protections for medical care in the war on terror has been issued.

Credit: Kris Snibbe/Harvard Staff Photographer“Today, with few exceptions, the United States can prosecute any physician, whether she is American, French, or Somalian, who knowingly provides medical assistance to terrorists,” said Dustin Lewis, senior researcher at Harvard Law School and one of three authors of a law briefing by the Harvard Law School Program on International Law and Armed Conflict.

For the authors, there is an urgent need for a ruling in favor of impartial medical care for all of the wounded and sick — military and civilians, terrorists and non-terrorists alike — in all armed conflicts.

It’s the right thing to do, they said, to preserve the foundational ethic of international humanitarian law, which places medical personnel above the conflict.

“We don’t expect readers to have a lot of sympathy to ISIS or al-Qaida,” said Blum. “What we’re concerned about is the erosion of the principle. We want people to make a value judgment on how dangerous a counterterrorism strategy is in potentially undermining a much broader ethical and legal commitment that goes way beyond the question of al-Qaida, or ISIS.”

This article originally appeared in the Harvard Gazette on September 25, 2015.

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Credit: Martha Stewart Professor Elizabeth Bartholet ’65

The Boston area was riveted this summer to the story of an unidentified child who washed up in a trash bag on a Boston Harbor beach. When the two-and-a-half-year-old girl was identified three months later, the public learned that her mother and her mother’s boyfriend were heroin addicts and that Massachusetts Department of Children and Families had previously investigated the home. Public concern intensified over how at-risk children are monitored and when they should be placed in foster care or put up for adoption.

Elizabeth Bartholet ’65, the Morris Wasserstein Public Interest Professor of Law at Harvard Law School, has been at the center of many public conversations following the discovery of the child, once known as Baby Doe, but since identified as Bella Bond. Bella’s mother’s boyfriend was charged with her murder, and her mother has been charged as an accessory to her murder.

A nationally renowned child welfare advocate, Bartholet is the founding Faculty Director of Harvard Law School’s Child Advocacy Program. Several recent news stories and interviews elucidate her views on child protection issues and her recommendations on how to reform the broken system.

A recent study by the New England Center for Investigative Reporting reported by The Boston Globe and New England Cable Network investigated the kinds of mistakes at all levels of the child-welfare process that put children at risk. The study found that between 2009 and 2013, 110 children died from abuse and neglect in Massachusetts, and one-third of those were under DCF care. Several case studies examined in the report “scream[ed] out” that social workers were often more concerned with keeping families together than ensuring children’s safety, Bartholet said in The Boston Globe. “Best interest of the child is clearly not the standard,” especially for children in the lower risk category, she said.

Bartholet was interviewed on TV and radio programs discussing whether child welfare agencies could have taken steps to prevent Bella’s death. Bartholet has long criticized a “two-track” system used in Massachusetts and other states that puts children either on a track where they are closely monitored by child-welfare agencies or puts them on a second “low-risk” track, in which parents have a choice of whether to accept state services.

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Harvard Law instructor David Deakin ’91 will prosecute “Baby Bella” case

David Deakin ’91, chief of the Family Protection and Sexual Assault Bureau and Senior Counsel to the District Attorney in the Suffolk County District Attorney’s Office in Boston, was recently profiled in The Boston Globe. He will prosecute the defendant charged with the murder of Bella Bond. Deakin has been a guest speaker in Elizabeth Bartholet’s “The Art of Social Change” course at Harvard Law School and an instructor in the school’s Trial Advocacy Workshop. Read The Boston Globe profile here: http://www.bostonglobe.com/metro/2015/09/20/prosecutor-david-deakin-will-seek-justice-for-baby-bella/ndJzOHel5X4RaijQLAf0HO/story.html

“Even on the traditional track, there is not enough intervention, there is not enough surveillance, there’s not enough protection for kids,” she told WRKO. “I think we ought to be moving in the direction of beefing up that traditional track. And to move in this other direction is simply a matter of a deliberate policy of putting children at greater risk. We have a system that does not value the child’s welfare even though it keeps claiming to.”

“The basis of our system is parents’ rights and valuing parent autonomy,” she continued, adding that she hoped these recent cases would “move our governor and our legislators to say we really should take kids’ safety and welfare seriously.”

A needed reform that Bartholet advocates is expanding outreach to families to become foster parents. Currently, middle class families are not typically recruited for foster care. Instead, recruitment is usually from welfare roles and in a child’s neighborhood. She said there is an “enormous population of people who would love to foster and adopt kids if they had a chance. But we have a system that pushes those people away.”

Interviewed on WGBH, Bartholet expressed her concern that Bella had been born drug-affected and sent home with a drug-addicted mother, who had already had two children removed by DCF. She said the problem is as much about ideology as it is about limited funds for child-welfare agencies, because foundations are pushing agencies to be “yet more family-preservation oriented.”

Bartholet said, “The legal system treats kids as if they belong near 100 percent with the biological parent. In fact, part of what we need to do is intervene more readily and take some of these high-risk kids away from the parents.”

One of the HLS courses Bartholet teaches is called “The Art of Social Change.” The class examines strategies for changing law and policy, focusing on the areas of child welfare (abuse and neglect, foster care, adoption), education, and juvenile justice.

***

Related reading

Parental custody? Not if they’re addicts (The Boston Globe)

DCF Shift Puts Children’s Safety At Risk (Hartford Courant)

Faculty Director Elizabeth Bartholet Awarded 2015 Pro Humanitate Child Advocacy Award

Bartholet receives award from the National Human Rights Committee of Qatar

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Undermining Injustice, One Prison Visit at a Time

There is no marker in Aníbal Bruno prison that speaks to home. In some cells, there are only dozens of men, sleeping on floors stained with feces, eating out of plastic bottles cut in half. But when he stands at the bars, Fernando Ribeiro Delgado pauses, as he would at the doorstep of any stranger’s house.

He offers a handshake to every man inside. He looks them in the eye. He calls each prisoner “Sir.” And though Delgado already has official permission to enter, he asks, because asking matters: Would it be all right if I came in?

“It’s the kind of respect that is obviously required, but that they are denied regularly by nearly everybody,” said Delgado, a clinical instructor in the International Human Rights Clinic at Harvard Law School.

Credit: Dana Smith

Over the course of the years, as an expert on prison conditions in Brazil, Delgado has argued before the inter-American human rights system; negotiated with government officials; and nurtured relationships with prisoners’ families, prison officials, and members of the national press. But it all begins, for Delgado, in the cell blocks and hallways of Brazil’s most overcrowded prisons, listening to the people who live there.

Born in Brazil, fluent in Portuguese, Delgado has worked in these prisons for years, challenging his clinical students to think through the complications that come with mass incarceration and neglect. Inside Aníbal Bruno, they watch him closely: the calm, firm way he negotiates with officers for access; the undivided attention he gives to prisoners; the deference he shows to his local partners, whom he considers the undisputed experts in the rhythm of the place.

Fernando’s work in detention centers in Brazil is unparalleled by anything being done by any clinic or NGO outside Brazil. He’s documented the most serious abuses in the most dangerous centers in the country.

James Cavallaro, Vice Chair of the Inter-American Commission on Human Rights

“I was really impressed to see him being so respectful, being so collaborative in his efforts, and not the Harvard professor who knows all,” said Colette van der Ven ’14. “He was a role model for so many of us.”

Any praise that comes his way, Delgado deflects to his mentors, in particular his clinical professor, James Cavallaro, former executive director of the HLS Human Rights Program and current vice chair of the Inter-American Commission on Human Rights. Over the years, Cavallaro has tracked Delgado’s career: Fearless, rigorous and dedicated are the words that come to his mind.

“Fernando’s work in detention centers in Brazil is unparalleled by anything being done by any clinic or NGO outside Brazil,” said Cavallaro. “He’s documented the most serious abuses in the most dangerous centers in the country.”

José de Jesus Filho, a Brazilian human rights lawyer, saw the potential when Delgado was an HLS student investigating the high-profile prison and police violence that hit São Paulo in May 2006. Delgado kept at it until 2011, when the HLS clinic released a joint report that exposed widespread police corruption and, according to de Jesus Filho, changed the way the Brazilian public viewed the sequence of events.

To de Jesus Filho, who monitored prisons for 20 years with Pastoral Carcerária (Catholic Prison Ministry), that kind of commitment stood out.

“When Fernando starts with something, he goes to the end,” he said.

***

In the field of prison rights advocacy, litigation before the inter-American human rights system is a powerful tool. When the court orders emergency measures, it binds all levels of government to the promise of protecting the life, safety and health of the persons at that facility. This, in turn, triggers a system of monitoring and reporting.

One of the clinic’s closest partners, Justiça Global (Global Justice), was at the forefront of this litigation, helping to secure protective measures at Urso Branco, one of the country’s most notorious prisons, back in 2002. It’s a case Delgado worked on as a fellow with Justiça Global and is still litigating today.

The work on Aníbal Bruno began years later, when a group of Brazilian rights organizations looked at mass incarceration patterns across the country and found another focus: the state of Pernambuco, where a new policy provided bonuses to police for every arrest they made.

Soon enough, they honed in on Aníbal Bruno, one of the largest prisons in Latin America, and among the most abusive. Since then, the clinic has worked with Serviço Ecumênico de Militância nas Prisões (Ecumenical Service of Advocacy in Prisons), Justiça Global, and Pastoral Carcerária to secure precautionary measures for all persons at Aníbal Bruno—including prison staff and the families of prisoners.

Credit: Wilma MeloIn Aníbal Bruno—a prison designed for fewer than 2,000 men, now holding 7,000—gangs of prisoners force payment from anyone who wants a designated place to sleep.

“I like this word Fernando uses: coalition,” said Wilma Melo, of Serviço Ecumênico de Militância nas Prisões, a longtime advocate and the family member of a former prisoner. “Each step we take, we take it together, and I believe this is the strength of our work.”

Years of monitoring have led to clear wins: a camera ban lifted, a punishment cell dismantled, medical help for the critically ill. Hundreds of illegally detained prisoners have had their cases reviewed and then have been released—including a forgotten man who was kept incarcerated 10 years beyond his original sentence.

Credit: RENATO SPENCER/GETTY IMAGES Wilma Melo, a longtime advocate in the Aníbal Bruno prison, is a member of one of the organizations with which Delgado and his students collaborate. “Each step we take, we take it together,” Melo said, “and I believe this is the strength of our work.”

But for every individual violation reported and remedied, there are thousands more. In a prison designed for 1,819 men, the population recently hit 7,000. At best, there might be one officer on shift for every 100 prisoners.

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In a prison designed for 1,819 men, the population recently hit 7,000. At best, there might be one officer on shift for every 100 prisoners.

With so few officers on duty, gangs of prisoners take on, or are given, the power of policing. Their leaders, known as “Chaveiros” or “locksmiths,” have keys to the cells and use them to govern an economy of beds, forcing payment from anyone who wants a designated space to sleep. On Delgado’s first visit to Aníbal Bruno, he met with a Chaveiro whose personal cell was furnished with a full-sized mattress and a meeting table. A cellphone lay on the tabletop. A knife hung from his belt.

“It’s chaos,” said de Jesus Filho.

Credit: Wilma Melo

At the very least, advocates say, the monitoring has forced a kind of reckoning on prison officials. They’ve gone from denying the depth of the problems at Aníbal Bruno to acknowledging many of them, and working with others to address them. This may be why, at one public meeting, a representative from the prison officers’ union put the question to the clinic and its partners:

“Can we get precautionary measures for every other prison in the state?”

***

When Delgado, his students and his partners walk through the entrance to Aníbal Bruno, they hear the same thing every time. First, the call goes out, from one cell to another: “Human rights!”

Then come the arms, reaching out from behind the bars, too many to count: “Over here!” “Over here!” “Over here!”

Some days, the team will interview more than 100 people. The students will pair off with Delgado and then settle into a space the prisoners have cleared for them. In the presence of women, some prisoners will put on their shirts. They’ll offer what water they have on hand. And then the stories will start.

Months of picking through international law could not have prepared James Tager ’13 for the pressure. At one point, he took down all the details that made up one man’s story and then realized, as he was leaving the cell block: He had forgotten to ask for the man’s name and ID number.

“It’s not like you can call back next week and double-check the facts,” said Tager, who later got the man’s name. “I was literally shaking—this idea that after talking to someone, because I hadn’t gotten his name, he wouldn’t be helped.”

The learning for students is intense, said Clara Long ’12, who now visits detention centers as an immigration and border policy researcher with Human Rights Watch. She trained under Cavallaro and Delgado, working with them on the Urso Branco case.

“You have a very compressed time period to build trust with someone, figure out how to keep them safe while they’re talking, figure out the right questions and get the most accurate information possible,” said Long.

Credit: Colette van der Ven

Nerve-racking is a good word for it. Before going through the metal detectors, van der Ven took a picture of a badly beaten man, only to hear a prison official’s warning about the camera ban inside. The ban had been in place for months, but there, in the moment, Delgado had an idea: Can anyone here draw?

Van der Ven had taken a few art classes in high school. That was enough.

“Just draw what you see,” he told her.

As she sketched a warehouse where hundreds of men ate and slept, some of the prisoners organized themselves so she could better see the space. Others gathered around, looking over her shoulder.

“It was like a unifying moment,” said van der Ven, now an associate in trade litigation at Sidley Austin. “We were all working toward justice for them.”

---

Credit: Colette van der Ven

Credit: Colette van der Ven

---

When the prisoners spotted a friend of theirs in her sketch, they joked that he was headed to the U.N. Instead, the coalition presented a slideshow of the sketches during a public hearing with the prosecutor’s office. The next time the team visited Aníbal Bruno, the camera ban was no longer in place.

Courtesy of Colette van der VenThis swan was given to Colette van der Ven ’14 by a prisoner in Aníbal Bruno prison.

There are many days when the question comes to Delgado’s mind: Are we making a difference?

Sometimes, the answer is clear and yes. Last spring, in response to repeated concerns the coalition raised, the court ordered a ban on strip searches of prison visitors. Several months later, prison administrators had passed their own statewide ban.

Number of people affected: 30,000 families every week.

But in prison work, there are constant reminders of the limits of legal advocacy. Recently, after the coalition created an online archive of thousands of pages of evidence, the state put the camera ban back in place.

So Delgado tries to remember: Small victories matter. The human barrier he forms with his students and partners, so that a prisoner suffering knife cuts can talk to medical staff privately, without the scrutiny of an officer. The extra time a team stands by the gate of the warehouse, refusing to leave until each prisoner gets bread they’ve been denied.

With their actions, they are undermining injustice in the moment. They are sending a message to all who are watching that every person is equal—deserving of dignity, protection and privacy.

“It’s not enough to report on the problems,” said Melo. “You have to make an impact there in the moment in order to produce the change.”

***

Take cell number 5. Melo had reported it before: a tiny, dank punishment cell, where Chaveiros would dump prisoners they had beaten. A long metal sheet was welded to the bars of the cell, perforated with small holes for air and light.

“The only thing comparable would be hell,” said Celina Beatriz Mendes de Almeida LL.M. ’10, who trained under Delgado and went on to become a professor at the Fundação Getulio Vargas School of Law’s Human Rights Clinic in Rio de Janeiro.

The team interviewed the 16 men inside, photographed their injuries, took down their names and then walked to the warden’s office, where Melo announced that she had “discovered” a punishment cell.

Nearly an hour later, after the prisoners had been removed, the warden stood in front of it, surrounded by a gang of Chaveiros, their arms folded across their chests. Hundreds of prisoners watched in silence behind them. Melo had insisted the metal door come down.

The warden examined it again, then finally turned to a nearby prisoner, and ordered him to find a tool that could remove it.

From somewhere in the crowd of prisoners, there came a suggestion: “A hammer?”

Yes, Melo said, a hammer. And so it came to be, that late one October afternoon, in one of the worst prisons in the country, the warden called for a hammer, and a prisoner proceeded to swing it, and together they brought the metal door down.

Even now, it is hard for Delgado and Melo to describe the emotion of the moment. To comprehend the ripple effects it had—for the prisoners, the warden, the Chaveiros, and beyond.

It was not the kind of victory that would make the newspaper. But it spread the spirit of possibility within the system, so that years later, when a prisoner told Melo about another punishment cell, he asked her to dismantle it, just like she did with cell number 5.

***

Since this article was written, the Inter-American Court on Human Rights has taken the rare step of summoning the state of Brazil to a public hearing on Aníbal Bruno. That hearing, on Sept. 28, will be broadcast live from Costa Rica here.

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In a visit to Harvard Law, Kagan reflects on her career and the Court (video)

Associate Justice of the U.S. Supreme Court and former Harvard Law School Dean Elena Kagan ’86 shared lessons learned from her career and offered a glimpse into the Court’s private world in a talk with HLS Dean Martha Minow.

During their wide-ranging conversation, which took place on Sept. 8 before an overflow crowd at Harvard Law School’s Wasserstein Hall, the former and current deans engaged in easy banter about Kagan’s stint as solicitor general and her experience on the Court.

Kagan’s comments ranged from insight into the Court’s inner workings and procedure to light-hearted anecdotes, such as how she and Justice Stephen Breyer ’64 played a violent video game in Breyer’s chambers to inform their opinions in a 2011 case ruling that video game makers enjoy First Amendment protection.

Kagan, known for the skill and clarity of her opinions, stressed to students the importance that they learn not just to think about law, but how to write about law. “Learning writing is the thing that will reap benefits over and over and over again for the rest of your career,” she said.

Credit: Martha Stewart

She also encouraged 1Ls to get to know really well at least one professor, and to understand that their peers could teach them at least as much as their professors. “So get your head out of the books sometimes and make really good friendships,” she said.

Kagan told students to “soak it in. I loved the first year of law school,” she said. “Although there were plenty of times I thought it was too hard for me.”

Kagan served as Solicitor General of the United States from 2009 to 2010, and before that as dean of Harvard Law School from 2003 to 2009.  She also served for four years in the Clinton Administration, as associate counsel to the President and then as deputy assistant to the President for Domestic Policy.

Kagan has returned to campus many times since joining the Court in 2010. For the past several years, she has led a Fall reading group at Harvard Law School that examines a series of decisions from the Court’s previous term.

Steiker study influential in Connecticut’s decision to abolish death penalty

Credit: Martha Stewart Professor Carol S. Steiker ’86

A study on capital punishment co-authored by Harvard Law School Professor Carol Steiker ’86 and her brother Jordan Steiker ’88 a professor at the University of Texas School of Law, was influential in Connecticut’s recent decision to abolish the death penalty in that state.

In August, the Connecticut Supreme Court ruled that executing inmates on the state’s death row would violate the constitution of Connecticut, effectively striking down the death penalty.  This decision came three years after Connecticut abolished capital punishment, but left death sentences intact for inmates already on death row.

In its decision, the court relied heavily on a report commissioned by The American Law Institute, the nation’s most influential non-partisan law reform organization. The 2009 study, “Report to the ALI Concerning Capital Punishment,”  completed by Carol Steiker and Jordan Steiker, examined the effectiveness of the Model Penal Code’s death penalty provisions, which were enacted by the ALI in 1962 and were designed to make the administration of the death penalty less arbitrary.

“It is gratifying to have our ALI report read by jurists and cited in this pathbreaking decision,” said Carol Steiker.  “This kind of impact is exactly why Jordan and I took on the project at the ALI’s request.”

The Steikers’ study found that there are too many insuperable obstacles, both structural and institutional, to administering the death penalty in a non-arbitrary way, and recommended against a new death penalty reform project on the grounds of its likely futility. The report led to The American Law Institute’s vote to withdraw the capital punishment provisions in the Model Penal Code.

In support of the decision to strike down the death penalty, the Connecticut Supreme Court opinion cited declining death penalty use across most jurisdictions, as found in the 2009 study. The total number of executions carried out nationally has fallen by more than 60 percent from the post-Furman peak of 1999, dropping from 98 in 1999 to 39 in 2013, and then falling again to 35—a 20 year low—in 2014. Of the 35 executions carried out in 2014, approximately 90 percent occurred in just four states: Texas, Missouri, Florida, and Oklahoma.

The court’s opinion also cited the conclusions reached by the ALI study to the effect that “the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved” (emphasis added by the Connecticut Supreme Court). Read the full opinion online.

The Steikers have been frequent collaborators in scholarship, litigation, and law reform. They are currently co-writing a book about the past half-century’s experiment with the constitutional regulation of capital punishment in America.

Carol Steiker currently directs, with Professor of Practice Alex Whiting, the new Criminal Justice Program of Study, Research, and Advocacy, a new initiative at Harvard Law School that seeks to analyze problems within the U.S. criminal justice system and look for solutions. The program was made possible by a recent gift that allowed the school to expand the mission of its existing Criminal Justice Program of Study beyond advising students to include research and policy advising in partnership with criminal justice agencies and NGOs.

In an interview with the Harvard Gazette in February, Steiker, who has done extensive research on capital cases, said her interest in criminal justice was sparked during law school. “It began to appear to me that criminal justice was a great engine of American inequality,” she said.

As a 2014-2015 Rita E. Hauser Fellow at the Radcliffe Institute for Advanced Study at Harvard University, Steiker focused her research on providing a better understanding of the roles played by the Constitution and the Supreme Court in the past, present, and future of the death penalty in America. In May, Steiker gave a talk on Capital Punishment and American Law.

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The Trans-Pacific Partnership and the changing world of international trade: A Q&A with Mark Wu

Credit: Martha StewartAssistant Professor Mark Wu

Assistant professor of law Mark Wu focuses his scholarship on the rapidly changing world of international trade and international law. A 2007 graduate of Yale Law School, Wu came to Harvard Law School in 2010 with extensive international experience in a variety of high-level government positions. He served as the Director for Intellectual Property in the Office of the U.S. Trade Representative, where he was the lead U.S. negotiator for the IP chapters of several free-trade agreements;  and as economist and operations officer for the World Bank in China. He also worked as an engagement manager for McKinsey & Co., focusing on the high-tech industry, and co-led a project as an economist for the United Nations Development Programme in Namibia.

Wu recently sat down to talk about his work and offer some comments about the future of the Trans-Pacific Partnership, a mega-regional trade agreement that negotiators from 12 nations are hoping to conclude in the coming weeks.

How did you first become interested in international law and international trade?

I started out as a social studies and East Asian studies major at Harvard College and had always been interested in international affairs. This was due, in part, to my family’s background, but also because of a trip I took when I was five. My parents were blue-collar, immigrant working-class folks, but when I finished kindergarten, we visited my aunt and uncle in Belgium and traveled around Western Europe. That was the only overseas trip that I took until right before college, but it opened up my eyes to the large world around me. When I came to Harvard as an undergraduate, I became interested in economic development; so when I went to Oxford, I studied development economics. At the time, I had very little inclination toward law. Following Oxford, I worked for the World Bank in China during a tumultuous period following the Asian financial crisis and when Premier Zhu was undertaking major economic reforms. My bosses asked me to attend a series of debriefings and meetings that the Chinese government organized concerning its WTO accession negotiations. That experience kind of whetted my appetite for international trade, but I didn’t pursue it for several years. It wasn’t until a second experience happened at McKinsey, where I was working on a project concerning trade issues and semiconductors, that it dawned on me that perhaps this might be an area of professional interest. So I consulted with a number of people who were actively involved in trade policy, and I received the advice that if this was something I was interested in pursuing, then a law degree might be helpful.

Credit: Joshi Radin

What are some of your primary areas of interest in international trade and international law?

Much of my scholarship has concentrated on the question: To what extent do trade rules need to be updated or the overall governing structure of trade needs to be transformed in light of what’s happening in the real world? One major change is, of course, the rise of emerging economies. China, especially with its different economic structure, poses a challenge. So too does India, but for very different reasons. Through the lens of particular disputes, I’m interested in exploring the extent to which the rules require clarification or updating in light of this economic shift. Another phenomenon that’s caught my interest in the last couple of years has been the changing relationship between trade and the environment. Several years ago, I co-wrote an article drawing attention to conflicts arising from increased use of trade remedies against renewable goods. More recently, I examined why developing countries are not more involved in ongoing negotiations at the WTO to lower tariffs for environmental goods. I’ve also been intrigued by the rise of cloud computing and 3D printing. We are just on the cusp of understanding how these technologies will alter trade in certain industries. My latest project examines the rise of digital protectionism and the need to create new rules for cloud-based trade.

What are your thoughts about how the Trans-Pacific Partnership will affect international trade?

Many have painted the TPP as part of a competition between the U.S. and China to set 21st century trade rules. This is partially true, but it’s important to realize that this is not a pure ‘either or’ competition in the sense that the Cold War was. It’s not a matter of deciding whether to join the U.S.-led TPP initiative or the alternative Chinese initiative. Nor is it the case that if the TPP takes hold, the Chinese will necessarily be forced to alter their course. Some in the U.S. have supposed that the TPP will be a major negative shock for China, and part of my current research is examining why this may not be the case. China has many reasons to undertake additional economic reforms, but I’m skeptical that the TPP will be a key instigator.

By its sheer size, the Trans-Pacific Partnership will change the way we think about how trade is governed in the world’s most dynamic economic region

Essentially what we’re seeing is a move away from a world with a standardized set of rules that apply across the board to one which is now fragmenting into multiple nonexclusive trading arrangements, each with its own set of additional rules. It’s not the case that the original rules disappear, but the world becomes much more complex when you have to deal with multiple sets of additional rules, such as the TPP. By its sheer size, the TPP will change the way we think about how trade is governed in the world’s most dynamic economic region.”

So what countries do you think will gain from TPP and which will lose?

It’s really about which constituencies in which countries. There are going to be winners and losers in every single country. Plus, the disaggregation of the supply chain means goods are often no longer made in one country any more. At the end of the day, it’s not a pure zero-sum game. A good trade deal should generate positive gains in all countries. But it’s important that these gains are broadly distributed and governments not neglect the constituencies that will stand to lose.

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Kristen Stilt on the intersection of animals, law, and religion

Professor Kristen Stilt

Professor Kristen Stilt, co-director of the Islamic Legal Studies Program, also focuses on animal law in her scholarship. She runs the new Animal Law & Policy Program, is teaching a course on Animal Law in the spring semester, and is planning a workshop on the intersection of animals, law, and religion. During a recent conversation, she spoke about the connection between animal law and Islamic law, and the impact of animal law on both animals and people.

What sparked your interest in animal law?

I was living in Cairo for my Ph.D. research. In America, you can avoid animal issues because they more or less take place behind closed doors. But in Egypt, it’s front and center. Everything from dogs on the street to donkeys pulling carts to slaughter at certain times of year—it is all out in the open. So I looked for an organization to volunteer with and found a group of Egyptians who were just starting the first animal protection organization. That was really the beginning of my interest in animal work and I have been working with them ever since—they are an amazing group of people. Later, it became an academic interest as well and I am now writing in this area of the law.

How has the field of animal law brought change to the lives of animals?

I think it’s been quite substantial. There are efforts now to put the most progressive set of protections for farmed animals on the ballot in Massachusetts. There are important cases in New York trying to free primates from captive situations. I think the animal issue is now on the national agenda—this is the animal moment. There’s been a huge burgeoning of interest in part generated by the legal field, in part generated by consumer demands and awareness.

How do students benefit by studying animal law?

One way is just to show them the failure of law. They are quite surprised when they realize how little law there is for the treatment of animals in the food supply, and that there’s almost nothing that governs how they’re treated when they’re being raised. The rules about the slaughter process are also pretty thin. We imagine that this area must be highly regulated because it’s our food, and there’s billions of sentient beings pushed through factory farms into the slaughterhouses every year, but really there’s very little. I also think it exposes them to so many different types of lawmaking alongside ways that consumer pressure can also bring about real change. It also offers them the opportunity to think critically about issues of standing. Many of the laws that seem to protect animals require a human to be injured in order to satisfy standing. So thinking strategically about how you build a case when you have this challenge is quite interesting for students.

Would a human’s emotional distress matter in a case involving animals?

 

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Caged! The Farm Animal Ballot Initiative

September 17, 12:00 pm - 1:00 pm, Langdell North

Sponsored by the HLS Student Animal Legal Defense Fund

On September 17, the HLS Student Animal Legal Defense Fund invites you to come learn about a new Massachusetts ballot initiative that would curb extreme confinement and lifelong immobilization of animals at industrial-style factory farms. The measure for the 2016 ballot is being proposed by a coalition that includes, among others, the Massachusetts Society for the Prevention of Cruelty to Animals; the Animal Rescue League of Boston; American Society for the Prevention of Cruelty to Animals; The Humane Society of the United States; United Farm Workers; Center for Food Safety; family farmers, veterinarians and public health professionals.

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There’s a great recent Texas Supreme Court case where, due to negligence, a family dog was killed. The family was devastated. This is the issue: What is the value of that family dog? We would think emotional distress and emotional damages would be included. But they aren’t—the court affirms that the dog is merely property, while also expressing discomfort with this conclusion. There are lots of ways in which we feel uncomfortable with the property status of animals—it no longer feels right—and yet we don’t have a clear idea of what new way the law might treat animals.

Has the animal-law movement spread to other countries around the world?

Absolutely. In fact, we can say it started outside of America and came here later. By the Colonial period there were anti-cruelty laws on the books. If we think about where it began, some of these much older societies and religions have been paying attention to animals for a long time. Islam has a long history of that, and Hinduism, Buddhism, Jainism, Judaism also have extensive rules for animals. In many ways, we’re the latecomers. But we’re also by no means the world’s leader now. We’re way behind Europe in terms of protections for animals.

As an Islamic law scholar also, can you talk about how Islamic law considers the rights of animals?

The Islamic tradition has long paid attention to animals. You might think some of the rules about slaughter are just for human benefit, but there’s strong evidence in the Islamic tradition and Islamic law that the rules were for the animals themselves, such as rules prohibiting the overburdening of pack animals like horses and donkeys. There are also rules about slaughter that are probably for the animals’ benefit: don’t drag an animal to slaughter and don’t slaughter one animal in front of another.

You’ve written about the poor treatment of animals in Egypt, particularly of dogs. Why does this happen considering the Islamic tradition you spoke about?

Not every area of Islamic law is clear. There are a lot of issues surrounding the status of the dog. It’s wrong to be cruel, but there are other teachings that say, for example, that dogs are impure and that you shouldn’t have them at home. Some people take these to even justify violence against dogs. Islamic law in this area is very complicated and sometimes a simplified message gets understood by the population that dogs are dirty and impure and so it’s acceptable to be cruel to them.

What role do animals play in your own life?

I feel compassionate towards animals—human and non-human—who can’t advocate for themselves. Animals are completely dependent on us. I have done a lot of rescue work in Egypt and have pulled cats and dogs off the streets in terrible conditions. Of those rescues, I adopted a dog and two cats, who live with us here in Cambridge.

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John Goldberg: on ‘Inexcusable’ Wrongs, Torts, and Private Law

Credit: Martha Stewart Professor John C. P. Goldberg

Harvard Law School Professor John C.P. Goldberg, an expert in tort law, tort theory, and political philosophy, is devoting much of his time to a book on torts that he is co-authoring with Fordham Law School Professor Benjamin C. Zipursky. He recently discussed some of the work that he’s done at HLS as well as his forthcoming book.

You recently published an article about tort law in the California Law Review titled “Inexcusable Wrongs.” Can you explain what it’s about?

It is a striking feature of tort law that it’s really quite unforgiving or demanding in certain ways. You can have the best possible attitude—”I’m determined to be a careful driver”—and maybe most of the time you are a careful driver. But if you make a mistake and injure someone, you may well be facing liability. If you say, “Come on, nobody can do better than I’ve done over the course of my lifetime of driving,” the judge or the jury will say, “That really doesn’t matter.” I’m interested in the particular notions of responsibility at work in tort law, which are often different from the notions of responsibility one finds in everyday morality and other parts of law.

Why should torts be “inexcusable”? Why shouldn’t courts define them in a way that recognizes valid excuses?

I’m content to say that this aspect of tort law is defensible, even though many scholars think it is not. It is defensible in part because it connects to a basic and very valuable feature of our tort system, which is that it empowers victims, rather than government bureaucrats, to decide what to do in response to mistreatments. Precisely because judges don’t have the authority to let wrongdoers off the hook based on excuses, if you’re a victim of a tort and you want to press your claim, you have that option. That’s part of what private law is all about—empowering victims to decide for themselves whether to credit a wrongdoer’s excuse.

Speaking of private law, you are part of a group of scholars who are working on something called the “New Private Law.” What is that about?

A great deal of modern law is public law—that is, law that regulates how government interacts with citizens, and vice versa. Constitutional law, administrative law, and environmental law are examples of public law. Private law governs interactions between individuals and firms, and operates primarily by empowering them to make arrangements with one another (contracts) or by imposing obligations that they owe to one another (torts) or some combination of the two (property).

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WATCH: Goldberg on ‘Inexcusable Wrongs’

In 2013, John Goldberg explored the notion of inexcusability in tort law in a lecture marking his appointment to the Eli Goldston Chair at Harvard Law School. “Typical torts are ‘inexcusable’ in that the law does not let us off the hook even when we have a pretty good explanation for why we did wrong.” Read more

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Since the New Deal, it has been common for legal scholars in the U.S. to claim that private law really isn’t a category; that private law categories such as torts and property are “really,” in the end, parts of public law. On this sort of view, tort law, for example, might be understood as an indirect form of government regulation—government harnessing the threat of lawsuits and liability to get people to behave the way the government wants them to behave. The New Private Law movement rejects the effort to collapse private law into public law. To the contrary, it insists that private law has its own distinct concepts, categories and ways of setting and enforcing standards of conduct. Addressing private law on its own terms will permit a clearer understanding of particular topics and entire fields, and will enable us to make better judgments about when private law or when public law promises the best solutions to pressing practical problems.

What other new things are you working on?

My regular co-author Ben Zipursky and I met as law students in the late 1980s. We became fast friends and are now both law professors. We’ve published dozens of articles and we’re now writing a book that aims to offer a complete picture of what tort law is all about, why it looks the way it does, and what’s good and bad about it. We think the book is timely and important because there’s a great deal of misunderstanding today. In the media, for example, tort law is all about billion dollar damage awards and frivolous lawsuits. There’s a reason for that. The media wants interesting stories—man bites dog, not dog bites man. So you’re never going to read a headline that says, ‘Jury today awards reasonable damages to medical malpractice plaintiff.’ That’s not news. Even though the book’s primary audience is academic, we hope that it will explain tort law in a way that is commonsensical and will demonstrate why tort has been an accepted part of Anglo-American law for centuries.

Do you have a title for the book?

We don’t. I tell my friends that the current working title is “The True Theory of Torts,” but that’s probably a little over the top, even for an HLS professor.

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