Monday, October 4, 2010

Recent publications

Came across a very interesting book worth to read with a provocative title "International Law For Humankind."
 Haven't read the book yet, but have to say I know exactly what it is centered on: the need to recognize the 'new' international law. As soon as the Internet appeared in peoples' lives and fastforwarded the globalization, the world was never going to be the same. International law as it was perceived in the 20th century also was bound to change. Increasingly the international law, no matter how people around the world understand it, is going through a restructuring. Since the law generally is a product of the society shaping it, international law was going to be shaped by the 'international community.' As spread out, large and diverse as that 'community' is, it is interconnected by very strong ties glued together by the age of information. So, in some sense the Internet fostered a new stronger 'international law'. Most people unquestionably will have exposure to it one way or the other. On the other hand, because of the Internet there are more voices heard out there in the 'international community',  that have the power and ability to shape that same international law. No longer is the international law a product of the industrialized world, Western civilization... Individuals from once marginalized countries and states now have a lot of say on what is going to be the 'international law' of the century. Because individuals from various cultures and countries may not always agree on many things, the globalization may 'weaken' the concept of international law. International law was always based on the aspirational postulate of 'universality', or in some sense, 'e pluribus unum'... The more the players, the harder for it to maintain its functions in a coordinated manner. It remains to be seen, how the fact that so many 'players' from such diverse corners of the world have come to the table, will ultimately shape the future of international law. Turning more 'democratic' and 'open', it does not necessarily become stronger. As we know, all democracies generally are more fragile than monarchies or oligarchies... Yet, if only a few 'chosen' continued the monopoly over the 'international law', that would subvert the very purpose of its existence.  

I would recommend to read this book and think more about what is awaiting in the future for 'international law'.

Thursday, April 29, 2010

Children growing up in prison...

Read a heartbreaking story and watch a video here on how women in Kabul, Afghanistan, charged and/or convicted of 'crimes' have to bring their children along with them to prison. With no one else to care for them, these children end up growing up literally in the prison while their mothers are either waiting for their case to be resolved, or are serving their times... What a psychological trauma at such age... Can children grow up healthy in this environment?! Some of the crimes that their mothers are charged with and convicted are simply ridiculous... and to drag along these kids with them is a total human rights disaster.

Wednesday, April 28, 2010

Hunger and Africa

Niger is struck really badly with a severe food crisis. A mother says, 'I seldom have one meal a day: my breakfast. I have a daughter who attends school; she can't eat every day. My husband has gone to Nigeria to fetch food.' For a full story. For those who know more about the African continent, this story sounds very familiar (very sadly). But this is something that has to be taken care of by the international organizations because the local governments are poorly equipped and lack resources to take appropriate measures. This is where international humanitarian relief is at most demand! It is very interesting to learn more about the availability of funding to these organizations. As the world is in financial crisis, the funding of these organizations is de minimus. The most direct victims are these children, who don't have food to eat...
(photo credit, see link above).

Sunday, January 10, 2010

Courtroom and real world facts...

The concept of 'reasonable suspicion' in the Fourth Amendment analysis has been difficult to apply in concrete cases... But the Ninth Circuit has said it pretty well:

Reasonable suspicion must be founded upon a particularized and objective basis for suspecting the particular person stopped of criminal activity. For this reason we must not accept what has come to appear to be a prefabricated or recycled profile of suspicious behavior very likely to sweep many ordinary citizens into a generality of suspicious appearance merely on a hunch. This is required by the fourth amendment. The opinions of this court have put the nomenclature of reasonable suspicion into the public domain. We must not allow ourselves to be seduced by the reassuring familiarity of its echo."
U.S v. Rodriguez, 976 F.2d 592.

The question is when the irrational hunch-- not a legal basis for the stop, metamorphoses into the legal basis, 'reasonable suspicion.' In other words, how trained officers in their minds create and articulate the suspicion that in the eyes of pro-law enforcement judges is 'reasonable' indeed. Unfortunately, the officers' training makes them suspicious of just about everyone and everything. But is that reasonable? Sometimes, I wonder, how different can be my views of 'reasonableness' from those of judges and prosecutors... Often I wonder and ask myself, 'Why don't they see it the way I see it?' 'Maybe my view is unreasonable?' I leave the courtroom after my motion to suppress is denied with a great puzzle and concern in my mind... It is altogether mind-boggling.

Is 'reasonable suspision' a chameleon that changes its colors or is it simply in the eye of the beholder?
Who is going to decide whether the suspicion was reasonable?! The trial court judge and his findings of fact will be given heavy weight.

The U.S. Supreme Court has said that it will review questons of reasonable suspicion' de novoOrnelas v. U.S. 517 U.S. 690. But interestingly in the opinion written by Justice Rehnquist, the Court heavily deferred to the wisdom of the lower judges, raising a pointed rebuke by Justice Scalia in another case, who said, "I do not see how deferring to the District Court's factual inferences is compatible with de novo review... we have here a peculiar sort of de novo review." U.S. v. Arvizu, 534 U.S. 266.
This strange type of review begs another question. Since finding of 'reasonable suspicion' depends on the facts of each case and is highly fact-sensitive, is the standard of review going to make a difference? After all, the facts drive the case. So, we are back to the square one. The trial judges will have almost absolute discretion over motions to suppress. They control what facts come into the courtroom. They have discretion to rule over admissibility of questions, what evidence should come in at the hearing... Many times I have lost motions to suppress because the issue I was driving at was precluded from being developed... 'Objection...'. 'Sustained.' 'But, Your Honor....' 'Sustained! Counsel,  move on to the next issue.' 'Can I make the record?' 'No, move on.' The end of the hearing. Motion Denied.

So, often there is a wide gap between the real world and the courtroom... It becomes so bad that the entire process really turns into a circus with artificially created figures... As a trial lawyer you have two options, either leave the courtroom in utter disappointment, or like a magician try to manipulate it... It entails a lot of acting, just like in Hollywood.