The Big Picture: “It’s Not the ‘Confidence Gap’ – Here’s What’s Really Holding Women Back”

My discomfort with the “confidence gap” article by Katty Kay and Claire Shipman in the Atlantic was not singular. Elizabeth Plank published a great reply in PolicyMic. Her article looks at the fundamental structural issues in the workplace that put women at a disadvantage. While confidence may be a barrier or an issue to some women, the problems raised by Plank are a barrier to all women, particularly those who are already disadvantaged. These are the issues we – first and foremost – should be thinking about and working to rectify.

One of the craziest things about the U.S. (apart from the fact that some of our citizens think Hillary Clinton planned her own shoe-throwing incident) is that we are the only industrialized country without paid maternity leave. Approximately half of mothers in the U.S. workforce don’t receive any paid leave, and many of them are forced by their employers to leave work early in their pregnancy without remuneration. Although Kay and Shipman acknowledge that women are the ones who get preggers (and devote a small paragraph to the importance of that basic biological truth), it’s mainly glossed over in their article.

Remembering WWII in Malmö (Part II)

I just noticed today that Popper’s parents (at least I believe them to be) are buried near him in the Malmö Jewish Cemetery. His father was a lawyer and his mother a doctor. The father’s headstone reads, in part: “He came the long way to rest in a Jewish spot with our only child.” The wife died many years later. Her headstone reads: “At last together.” Perhaps I’m being overly sentimental here, but I find it fascinating that a little piece of touching history can be found in this seemingly random corner of the earth.

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“The failure of desegregation”

I posted a link below to this article, “The failure of desegregation,” but I just wanted to highlight two additional paragraphs, which I think are particularly important:

To the extent that the word “desegregation” remains in our vocabulary, it describes an antique principle, not a current priority. Today, we are more likely to talk of diversity—but diversification and desegregation are not the same undertaking. To speak of diversity, in light of this country’s history of racial recidivism, is to focus on bringing ethnic variety to largely white institutions, rather than dismantling the structures that made them so white to begin with.

And so, sixty years after Brown, it is clear that the notion of segregation as a discrete phenomenon, an evil that could be flipped, like a switch, from on to off, by judicial edict, was deeply naïve. The intervening decades have shown, in large measure, the limits of what political efforts directed at desegregation alone could achieve, and the crumbling of both elements of “separate but equal” has left us at an ambivalent juncture. To the extent that desegregation becomes, once again, a pressing concern—and even that may be too grand a hope—it will have to involve the tax code, the minimum wage, and other efforts to redress income inequality. For the tragedy of this moment is not that black students still go to overwhelmingly black schools, long after segregation was banished by law, but that they do so for so many of the same reasons as in the days before Brown.


Morning reads: education.

  • Eleanor J Bader in her article “Academia under the influence” reviews Piya Chatterjee and Sunaina Maria’s new book, The Imperial University: Academic Repression and Scholarly Dissent.

Chatterjee and Maira, in a 43-page introduction to the text, situate the academy within a “global structure of repression, militarism and neoliberalism.” Indeed, they report that colleges and universities have historically done the bidding of government, weeding out rabble-rousers who challenge the status quo.

“If you ask who can afford to go to law school, or who can afford a lawyer, the answer is: not most people in America,” he said. “Those who do manage to graduate from law school end up with excruciating debt. They feel compelled to take jobs with the highest paycheck to find some relief. They don’t feel free to work in jobs that fit their interests or that meet a critical demand. The result is most people can’t afford quality legal services and millions of Americans are deprived of access to qualified lawyers.”

Schooling mirrors the government in power, but also amplifies its structures and messages.  The case of Rwanda reminds us that not just any schooling builds peace.  This is an important reminder to donors, policy-makers, students and teachers.

Black and Latino students in New York have become more likely to attend schools with minimal white enrollment, and a majority of them go to schools defined by concentrated poverty. Three-quarters of the city’s charter schools, which were a key component of Mayor Michael Bloomberg’s efforts at education reform, have fewer than one per cent white enrollment. At Stuyvesant, the most exclusive of the city’s specialized public high schools, where admission is determined by a competitive exam, only seven black students and twenty-one Latino students were offered places in next year’s freshman class. New York is simultaneously the most diverse city in the United States and the most glaring indicator of integration’s failures.

Katty Kay and Claire Shipman on The Confidence Gap

Edit: A reply was recently published on PolicyMic to the article below. I agree that the structural issues which put women at a disadvantage should be – first and foremost – of primary concern. Specific to the Katty Kay article on confidence, read on.

A growing body of evidence shows just how devastating this lack of confidence can be. Success, it turns out, correlates just as closely with confidence as it does with competence. No wonder that women, despite all our progress, are still woefully underrepresented at the highest levels. All of that is the bad news. The good news is that with work, confidence can be acquired. Which means that the confidence gap, in turn, can be closed.

- Katty Kay and Claire Shipman in The Confidence Gap.

I.      I read Katty Kay and Claire Shipman’s article The Confidence Gap with great interest. I am also guilty of downplaying success and attributing it to factors outside my control, e.g. sheer luck, an easy exam, an arbitrary selection process. I am also guilty of worrying – to unnecessary degrees – about whether I will be properly qualified to do a job once I am given it, or whether I will pass an exam. As this article suggests, it seems that the world of worry is one where mostly women live. It’s something I see in myself, and female friends and family.

“There’s just a natural sort of feeling among the women that they will not get a prestigious job, so why bother trying,” she explained. “Or they think that they are not totally competent in the area, so they’re not going to go for it.” As a result, female students tend to opt out. “They end up going into less competitive fields, like human resources or marketing,” she said. “They don’t go for finance, investment banks, or senior-track faculty positions.”


The advice implicit in such findings is hardly unfamiliar: to become more confident, women need to stop thinking so much and just act. And yet, there is something very powerful about this prescription, aligning as it does with everything research tells us about the sources of female reticence.

- Katty Kay and Claire Shipman in The Confidence Gap.

II.      A lack of confidence manifests itself in many ways. Some barriers are probably easier to surmount. I think overcoming a lack of confidence in the context of seizing opportunities, as described above, is a good place to start. One way to motivate oneself to act is to put into context the very worst that can happen if one does act. I may think I am not competent to do a job, but I will always apply. Quite literally, the worst that can happen is I am told ‘no.’ Failure, at least at that initial stage, is not a reasonable fear. Moreover, failure can be a great motivator by offering direction and shaping ambition. Rejection, however unpleasant it may be, is a great way of learning more about oneself. As the authors suggest, it’s also good practice for challenges down the road.

III.      My worry tends to set in if I get the job (particularly one I really want): Will I do well? Will I learn fast enough? Am I just qualified on paper? These are questions that I think are both capable of holding someone back, but also propelling someone forward. The outcome likely depends on whether you let this worry get the best of you, and how you express it to others. The brain is incredible, and there is evidence that it can be trained to behave in a way which is less harmful to you and to people around you (what the authors call brain plasticity). In my case, a healthy dose of self-awareness and the ability to tell myself to “stop” has gone a long way to curbing unproductive worrying, which, in turn, has allowed me to focus more on working hard.

IV.      Erin Anderson published a short comment on The Confidence Gap in the Globe and Mail yesterday and it goes directly to something I find missing from the debate on women and lack of confidence.

But isn’t the real hazard that we put too much stock in over-confidence (the kind not supported by competence)? To quote an Arabian proverb: “He who knows not and knows not that he knows not … is a fool, shun him.” And yet the opposite happens; nations and businesses too often reward the blowhards, and the results – from wartime to Wall Street – are legion. The failure to distinguish between luck and skill is what sinks many a gambler, and not just the ones in Vegas. In a society today, we much bemoan the vacuum of smart, effective, moral leaders. Consider the qualities elevated in Forbes’ list of the best 100 quotes on leadership: courage and charisma, obviously, but also the ability to share credit, heed the opinion of others, to assess failure, to self-reflect. Not exactly the qualities of a strutting peacock.

Confidence is surely a quality worth cultivating (although, with our own kids, the current worry is that we might have planted the self-esteem seed too well.) But what’s the message here? If only women were as mouthy and cocky (ahem) as men, the problem would be solved. Hardly.


Young women need to learn to demand fair compensation and recognition for their talents and to find mentors who will guide them. That’s a given. But this “problem” can’t be placed solely on them. Society still sidelines mothers and judges women for being too outspoken. Men don’t get called “pushy” or “bossy.” Changing those attitudes requires more equitable workplace policy, clear messaging from the top, as well as reversing institutional gender bias. Seeing through overconfidence to recognizing the potential leadership skills in humility and competence is good for business. Who really wants slick, when they can have smart?

Having a “lack” of confidence is not necessarily a terrible thing. A healthy dose of humility (which I think, if you shift your perspective, is interchangeable with what the authors seem to perceive as a lack of confidence) has been identified as an important trait in the workplace (although it remains understudied). For example, it can help build relationships with colleagues, who might otherwise be intimidated or annoyed by overconfidence. It can allow for a creative space where others can pitch in. It can motivate you to work harder and to continuously seek new opportunities to learn and improve. Society seems to understand humility as an admirable character trait, and I think it does so accurately. After all, a person may be qualified for a job, but more often than not there are other factors, structural and social, that play into success. It’s a matter of finding a healthy balance. Humility should not prevent you from speaking your mind, starting a business, or seizing an opportunity. But, humility keeps success in perspective, which is beneficial in and of itself.

Wainaina interview on This is Africa

The interview is available on This is Africa. I particularly liked this comment on Nairobi, a city I lived in for nine months in 2009/10:

Nairobi is a strange and interesting place. Unlike Lagos or Kampala, it really doesn’t belong to anybody. That’s the worst and best thing about it. People may have very strong opinions about things, but they also inherently hate the idea of you saying, “This is African culture or this is whatever culture.” They say, No, no, no, me I just want to be anonymous in the city. I don’t need you imposing this weird thing. I do my thing. There isn’t the same sense you get in Kampala that everything is everybody’s business.

“The Federal Rules at 75: Dispute Resolution, Private Enforcement or Decisions According to the Law?”

Interesting article by James R. Maxeiner critiquing the U.S. Federal Rules of Evidence. He concludes that the U.S. needs to start re-evaluating its justice system in light of systems in other countries (civil and common law). In other words, a bit of legal pluralism can go a long way in shaping a healthier domestic justice system. An excerpt from the introduction:

The two sides [members of the profession who live by the rules versus business persons who are subject to them] demonize each other. The one side sees no lawsuit that is other than frivolous and whose costs are other than outrageous; it doubts the ethics of anyone who would promote such base behavior. The other side sees no plaintiff’s plea that is other than proper and finds no price that is too high to pay for “justice”; it questions the conscience of anyone who would reject such claims of right and put a dollar value on justice. Both sides can point to thousands of cases that fit their respective views.

Neither side, however, addresses the millions of cases that do not fit either viewpoint. These are cases of people who don’t vocalize about the Federal Rules. These people are the ninety-nine percent. They have no goal in mind loftier than routine dispute resolution according to law. They are the people who, when they have a claim against a careless contractor or a cash poor customer, think that the legal system should uphold their rights and return to them their claims without deduction. They are the people who, when they are sued, think that they should have a day in court to voice their views. They are the people who when they are fired by their employers think that they should have a chance to challenge the grounds for termination. These people are left out of the conversation altogether. Often, they give up with- out ever taking their cases to court

These people cast a pall on the revelries of the Federal Rules at seventy-five. 

“Elites, Interest Groups, and Average Citizens”

This article in the Washington Post caught my eye: “Rich people rule!” The paper discussed in the article is available in draft form here. It’s an excellent read. I do not think their conclusions are intuitively surprising, but the authors do boast that they have accumulated the first set of data demonstrating the impact of interest groups in American politics. This is bound to lead to further equally interesting research on wealth and policy-making. In particular, I would really like to see comparative analysis of similar date gathered in other countries, e.g. Sweden. Some highlights:

But the picture changes markedly when all three independent variables are included in the multivariate Model 4 and tested against each other. The estimated impact of average citizens’ preferences drops precipitously, to a non-significant, near-zero level. Clearly the median citizen or “median voter” at the heart of theories of Majoritarian Electoral Democracy does not do well when put up against economic elites and organized interest groups. The chief predictions of pure theories of Majoritarian Electoral Democracy can be decisively rejected. Not only do ordinary citizens not have uniquely substantial power over policy decisions; they have little or no independent influence on policy at all (15) [emphasis added].

By contrast, economic elites are estimated to have a quite substantial, highly significant, independent impact on policy. This does not mean that theories of Economic Elite Domination are wholly upheld, since our results indicate that individual elites must share their policy influence with organized interest groups. Still, economic elites stand out as quite influential – more so than any other set of actors studied here – in the making of U.S. public policy (16) [emphasis added].

The Cost of Specialization

From Voltaire’s Bastards:

Specialization and professionalism have provided the great innovations in social structure during the Age of Reason. But they have not created the bonds necessary for public cooperation. Instead they have served to build defensive cells in which the individual is locked.

One of my greatest concerns in going to law school would be that, instead of opening my mind to issues I knew nothing about, the law would force me to (or I would give in) think in a constrained, “legal” structure. This fear has partially manifested itself. I found that with the more knowledge I gained in one field, the less I felt entitled to speak out about issues unrelated to what I was learning. I was, in a sense, becoming a specialist.

I agree with John Saul on the dangers of becoming a specialist. I also agree with the dangers of acting as an expert on issues that you know nothing about. There’s a fine balance to be struck and one which remains evasive to me. Fear of speaking out on issues unrelated to one’s specialty means that one becomes trained in an insular and potentially narrow-minded way of thinking with little relevance to the rest of the world. It also means that you deprive other specialists of skills you have developed that could provide meaningful insight. On the other hand, speaking out on issues which you know nothing about can cause serious damage, particularly if done irresponsibly or with little concern or awareness of the ‘real world’ repercussions. This is particularly well-illustrated in the fields of international development and aid.

Overall, I have no clear answers on the issue of specialization and what this means for society and for society’s ability to work together towards a consciously designed and improved system. I do think Saul is correct in suggesting that specialization undermines our willingness to speak out and to work with others, consequently giving more power to elected officials who may not have our best interests in mind. This issue of specialization is something that I want to start tackling, and I hope that law schools and other institutions training “specialists” will encourage real and meaningful interdisciplinary study as a first step.

Discourse in Welfare: It Matters

Interesting article in The Guardian (UK) on the British welfare state by Ha-Joon Chang, economics professor at Cambridge University. Chang underlines that a key issue with the modern welfare system is how it is framed to the public:

Important though these criticisms are, the biggest issue is the very way in which the “problem” of the British welfare state has been defined and understood. The cap is based on the view that the UK needs “to prevent welfare costs spiralling out of control”, given the wasteful nature of such spending. This is not backed up by the evidence.

He makes an excellent point. It’s hard to hold an informative and productive debate on the issue of welfare when sentences like “spiralling out of control” are used by the political parties to further their policies to cut welfare spending.

Similar to what Stiglitz argues in his book the Price of Inequality, the notion of “welfare” is grossly misunderstood. Contrary to popular belief, there is evidence that the “welfare” state can actually improve growth. As Chang (and he’s not alone!) writes:

The point is that the welfare state – if well designed and coordinated with labour market policies to re-train people and get them back into work – can encourage people to be more accepting of change, thereby promoting growth. Firms in countries such as Finland and Sweden can introduce new technologies faster than their US competitors because, knowing that unemployment need not mean penury and long-term joblessness, their workers do not resist these changes strongly.

The National Self-Represented Litigants Project

This looks like an important initiative for access to justice reform in Canada.

The National Self-Represented Litigants Project (NSRLP) builds on the National Self-Represented Litigants (SRL’s) Research Study conducted by Dr. Julie Macfarlane from 2011-2013. The project takes its mandate from the Final Recommendations of the Research Report: 10 Actions Steps for the SRL Phenomenon.

NSRLP aims to continue to generate energy and motivation towards serious contemplation of system change, reflecting the findings of the Research Study.

NSRLP is committed to collaboration to enhance the responsiveness of the Canadian justice system to SRL’s, and to continuing dialogue among the stakeholders who include SRL’s, lawyers, judges and court services staff.

NSRLP is also acting as a clearinghouse for information and resources related to the SRL phenomenon. NSRLP is committed to information and resource-sharing on the SRL phenomenon among all interested and affected parties.

NSRLP is funded from 2013-14 by the University of Windsor, Faculty of Law and aligns with Windsor Law’s mandate to promote Access to Justice for all Canadians.

We are very excited about continuing our work with and for SRL’s in the coming year. We invite you to join us – bycontributing your story as a SRL, by inviting a SRL to speak to your professional conference.

Participate in a policy working group and by signing up to participate in the regular discussion on Facebook, follow our Blog, joining our listserv and signing up to receive our e-newsletter.

Charting inequality

John Cassidy has compiled an interesting set of charts on inequality in the New Yorker. The chart comparing income inequality in Anglo-Saxon countries between 1910 and 2010 is particularly interesting. Take a look at Canada between 1945 and 1990. Is the stabilization (and later progressive destabilization) in income inequality related to the beginning and end of the so-called welfare state?

Access to justice in Canada

The Canadian Bar Association released a report on access to justice metrics in April 2013 (I would read this in conjunction with the Roadmap for Change report). I think this issue of “measurement” is crucial. What measures are in place to determine whether an access to justice intervention is actually working for a community? I feel like access to justice rhetoric in Canada could draw a lot from lessons learned in the context of international development. Also, an interesting access to justice initiative: “Vancouver’s Downtown Community Court.” This looks like a much more holistic approach to criminal justice. See more here.

Learning about inequality

The disturbing levels of “inequality” I witnessed after living in New York City and frequently visiting Washington, D.C. and Vancouver continue to baffle me. This “phenomenon” is something I’m hoping to study through the lens of the legal system. Fortunately, others are also taking notice. Try Stiglitz’s the Price of Inequality. Stiglitz unabashedly deconstructs the “American Dream.” For lawyers, there’s a short chapter on how the legal system perpetuates inequality, which is worth a read. The New Yorker also had an interesting piece on a recently released book on the same topic, “Capital in the 21st Century.”


The Caribbean Court of Justice: A Human Rights-Oriented Court?

I’ve been doing some research lately on the Caribbean Court of Justice (CCJ). This Court has several unique highlights. One such highlight is that the Court performs a dual function. It has original jurisdiction over the application and interpretation of the Revised Treaty of Chaguaramas. It also has appellate jurisdiction over criminal and civil matters for Contracting Parties that agree to this function (so far Belize, Guyana and Barbados). The Court has released a number of interesting judgments, including this case.

With regards to the Court’s appellate jurisdiction, there was an interesting discussion in Frank Errol Gibson v Attorney General about a defendant’s constitutional right to be provided – by the State – with adequate facilities in conducting defense preparation, as well as the meaning of a trial within a reasonable period of time under the Constitution of Barbados. Will this be a strong human rights-oriented Court? Some highlights:

  • “When one considers the sum total of the specific circumstances of this case, it was our view that there could not be a fair trial in this case if the defence, through lack of means, were deprived of access to the services of a forensic odontologist and this Court could not sanction Gibson’s trial under those conditions” (para 40).
  • “While it is true that a certain comity must exist between the various branches of the State, we do not subscribe to the notion that the separation of powers principle can preclude the court from making an order against the Executive in exercise of the Court’s power to redress of prevent breaches of constitutionally protected rights merely because the order requires the Executive to expend public funds” (para 42)
  • “Section 24 is deliberately couched in broad terms because … the court has, and must be ready to exercise, power to grant effective relief for a contravention of a protected constitutional right. If the appropriate way to remedy a breach is to make a mandatory order for the payment of money by the State, then that is what the court is empowered and obligated to do.” (para 42)

The Court then considers the issue of a trial within reasonable time:

  • “To be fair, inordinate delays are not unique to the State of Barbados. They are prevalent in other Caribbean States as well. But this provides no justification for countenancing delay. Some States have actually made assiduous efforts to address the problem” (para 51).
  • “It is not of course for this Court to prescribe for Barbados the specific measures that it must take adequately to overcome the problem of delays in its criminal justice system. But we feel in duty bound to draw to the attention of the relevant authorities the urgent need to address it in a thorough and comprehensive manner if it is not already being so address. As the apex court responsible for interpreting and applying the rights set out in the Barbados Constitution, this Court cannot remain oblivious of well founded concerns that breaches of the right to trial within a reasonable time are systemic in nature. If on the other hand it is apparent that prompt measures are being taken to address this problem in a decisive manner then a court is likely to take cognizance of such measures when it has to ass the reasonableness of lapses of time or the remedies that should be applied (para 52).

The Court applies principles of proportionality to determine whether the delay of 29 months was reasonable (para 60). “One starts with the premise that the Executive Branch of Government has a constitutional responsibility to allocate sufficient resources to ensure that the reasonable time guarantee has real and not just symbolic meaning. A governmental failure to allocate adequate resources, or for that matter inefficiencies within the justice sector, could not excuse clear breaches of the guarantee” (para 60).

Gostin’s Framework Convention on Global Health

Gostin elaborates on the idea of a Framework Convention on Global Health in this recent article. A critique of three aspects – targets and benchmarks, sustainable funding scalable to needs and accountability, and treaty monitoring and compliance – follows.

First, are targets and benchmarks effective? Implementation problems raised by the Millennium Development Goals (MDGs) suggest that these tools are not necessarily effective ways of ensuring change. They may facilitate political shaming, but it is not clear whether this serves to change State behaviour. The fact that countries under the Framework are to establish strategies and targets “that are ambitious, yet achievable” in relation to their capacities might help. Gostin’s idea also responds to other common criticism of the MDGs. But, ultimately, if such targets do little to affect State behaviour and bring tangible meaning to “the right to health,” where is the concrete value?

Second, Gostin also discusses the implementation of a “financing framework with clear funding benchmarks for governments’ domestic health spending and for international health funding commitments.” Gostin talks about different strategies, from levying taxes and fees on unhealthy foods, to helping States better collect taxes, and the creation of a Global Fund for Health. Once again, what these strategies fail to address is how to ensure that these expenditures will actually result in concrete change. These funds would not be exempt from the same sorts of problems that plague development assistance on a day-to-day basis.

Finally, Gostin raises the issue of accountability and treaty monitoring and compliance. Gostin is right to argue that “greater accountability must be at the heart of improved global governance for health.” In particular, corruption must be mitigated in order to ensure that funding ends up in the right place and has the desired effect. He suggests that the Framework could force states to adopt guidelines targeted at corruption (e.g. requiring competitive bidding processes, transparent reporting on funding allocations in health etc.). But, this is already happening and is not necessarily working.

That being said, I agree with Gostin that effective compliance should include a regime of “incentives and sanctions” (although it is not clear what he has in mind). This is one area where international law could be particularly helpful, especially if linked to larger systems such as the World Trade Organization. Of course, achieving this remains largely theoretical. And, as Gostin notes, some types of sanctions (e.g. severe trade sanctions) could end up simply hurting the health of already marginalized populations by depriving them of sources of livelihood.

Of course, this does not purport to be an exhaustive review of Gostin’s work (see more here) and some ideas may indeed be welcome contributions (in particular, direct funds to CSOs to implement health programs). I simply wanted to highlight some major issues that could arise under the Framework (at least at first glance).[1] While international mechanisms have their place in realizing a “right to health,” I think what is perhaps more interesting – and feasible – is the discrete, non-resource intensive types of health programs that can make significant and immediate changes. Once again, Duflo and Banerjee’s work on this is impressive. Would scaling up these types of ideas be a better use of resources than developing – a potentially duplicative – international law framework around the “right to health”?

[1] I understand that Gostin tries to draw a distinction between perceiving of health as an “aid” versus “human right” or “right to health” issue (with him favouring the latter). Either way, this distinction is not very helpful when it comes down to implementation. Whether framed as an “aid” issue or a “human right” issue, the same problems arise.

“What Were They Thinking? The Mental States of the Aider and Abettor and the Causer Under Federal Law”

An extensive study of the confusion around the law of aiding and abetting under the US Model Penal Code. Worth a read. Some of the concerns highlighted by the author here arise in international criminal law jurisprudence and the development of a mens rea for aiding and abetting. It is particularly interesting to note that the actus reus / mens rea standard adopted by the ICTY/ICTY/SCSL Appeals Chambers (well, excluding Perisic) takes a similar “substantial assistance” approach as that discussed by Weiss. This approach for defining the mens rea of aiding and abetting provides that where the aider and abettor’s assistance to the principal is more than substantial, a knowledge standard is sufficient. However, where the assistance is less than substantial, purposeful intent is required (1408). Interestingly, this is the one reading of the mens rea of aiding and abetting that seems to have been rejected in US law under the Model Penal Code (1410). In the recent Taylor decision, the SCSL AC confirmed that the actus reus of aiding and abetting required that the assistance provided by the aider and abettor have a “substantial effect” on the commission of each charged crime. Knowledge remained the appropriate mens rea standard. 

Taking the moral high ground.

Justice Shireen Avis Fisher’s concurring judgment in the Appeal Chamber Taylor decision:

Furthermore, suggesting that the Judges of this Court would be open to the argument that we should change the law or fashion our decisions to the interests of officials of States that provide support for this or any international criminal court is an affront to international criminal law and the judges who serve it. The Defence has interjected a political and highly inappropriate conceit into these proceedings, which has no place in courts of law and which has found no place in the Judgment of this Court. The Judges of this Court … are sworn to act independently “without fear or favour, affection or ill-will” and to serve “honestly, faithfully, impartially and conscientiously.” To suggest otherwise wrongfully casts a cloud on the integrity of judges in international criminal courts generally and the rule of law which we are sworn to uphold, and encourages unfounded speculation and loss of confidence in the decision-making process as well as the decisions themselves. I wish to make clear that this line of argument is absolutely repudiated (para 717).

Legal Empowerment, Social Movements and Fostering Equitable Economic Development in Cambodia

Studies suggest that there may be a positive relationship between rule of law and economic growth. However, it is clear that economic growth happens in countries where there is a deficit in rule of law and that economic growth can be unequal. In this article, we accept the premise that rule of law may lead to economic growth and argue that, in  order to secure equitable growth, access to justice through the legal empowerment of the poor must be a key concern of any rule of law reform. In particular, we argue that social movements play an instrumental role in the empowerment process. As access to justice and legal empowerment fall within the framework of rule of law reform discourse, we first consider the various definitions of rule of law and assess to what degree economic growth can be attributed to the establishment of rule of law. Second, we look at the notion of access to justice as an integral part of rule of law and the role of access to justice in economic growth. Third, we provide a concrete example of how legal empowerment and social movements can help secure access to justice using land disputes in Cambodia as a case study. In particular, we consider how legal empowerment is necessary in order for economic growth in the country to be equitable, rather than concentrated in the hands of an elite. We examine in more detail the framework for land rights in Cambodia and the types of challenges faced by Cambodian communities in mounting a social movement against land evictions. In light of our findings, as well as Amartya Sen’s conception of justice, we provide recommendations aimed at strengthening Cambodian social movements and facilitating legal empowerment.

Co-authored with Dr. Nandini Ramanujam. More here.