Brown Undergraduate Law Review -- Vol. 2, No. 1 (Fall 2020)

Fall 2020 || Vol.2|| No.1

b r o w n

u n d e r g r a d u a t e

l a w r e v i e w

The Brown Undergraduate Law Review is Brown University?s

student-written and student-run journal of legal scholarship.

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BROWN

UNDERGRADUATE

LAW REVIEW

2020 || Volume 2 || Issue 1

Editorial Board and Staff

UNITED STATES LAW

EDITORS

Chaelin Jung '23 (Head)

Noah Glickman '23

Sonia Kelly-Manning '22

Christopher Morillo '21

EDITOR-IN-CHIEF

Jordan Kei-Rahn '21

EDITOR-IN-CHIEF

Filippo Zinni '21

MANAGING EDITOR

Ilana Duchan '22.5

INTERNATIONAL LAW

EDITORS

Sophia Matthews '22 (Head)

Hing Lai Sophia Chan '22

David Del Terzo '23

Adriana Lorenzini '22

COPY EDITORS

Amber Fehrs '22

Edan Larkin '23

Anna Park '23

Daniel Poloner '24

FACULTY ADVISOR

Ari Gabinet

Senior Fellow, Watson

Institute

Legal Expert in Residence

CREATIVE TEAM

Zeynep Aydin '23 (Director)

Elaine Wang '24

Auria Zhang '22

SPECIAL THANKS TO OUR SPONSORS:

THE PRINCETON REVIEW

THE BROWN LEGAL HISTORY WORKSHOP

Brown Undergraduate Law Review

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A LETTER FROM

THE EDITORS

We proudly present the second volume of the Brown Undergraduate Law Review. This past semester, a

time of great challenges, we were determined to identify areas of opportunity to further develop our

organization. Adapting to the virtual environment mandated by the Covid-19 pandemic, our staff worked

tirelessly to create new systems of soliciting submissions, working with authors, and reaching out to the greater

Brown community. As a result, our organization experienced an outpouring of student interest, quadrupling the

size and expertise of our team, and allowing us to publish more content on a wider variety of platforms.

Identifying a need for timely discussions of emergent legal issues, we created our ?Blog.? This section of our

organization features shorter articles published on a more regular basis, incorporating not only writings of our

staff, but also those of other students, alumni, and faculty guest authors. We believe this initiative will enhance

the accessibility of our organization, spur legal conversations among diverse participants, and increase our

ability to respectfully amplify voices on campus.

The Covid-19 pandemic, continued violence against People of Color, the 2020 Election, and the recent

insurrection on Capitol Hill have all emphasized novel and pre-existing fractures in the United States legal

system. These critical issues require our deepest attention, and will hopefully allow for positive and meaningful

legal reform. The BULR exists as a bastion dedicated to the civil discussion of the law and all its inherent

successes and failures. We hope that our colleagues can, through engaging with our forum, learn more about

how we can combat flaws in our legal system to ensure a more peaceful future. Winston Churchill once

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A Letter from the Editors

declared: ?Success is not final, failure is not fatal: it is the courage to continue that counts.? We all must

continue to persevere through these vicissitudes, grateful for the positive influences in our lives, but never

complacent when facing injustice.

As a legal journal, we would be remiss in not recognizing another tragic event in the legal system this

year: the passing of Justice Ruth Bader Ginsburg. Justice Ginsburg served as a source of inspiration to many of

our authors, staff, and readers for her thoughtful legal analysis, her eloquent opinions and dissents, and her

compassion. Although no longer with us, Justice Ginsburg?s voice continues on through her many admirers. We

are fortunate to have submissions in this publication which discuss some of her many important contributions to

the nation, including gender equality and reproductive rights.

This publication encompasses a great variety of topics ranging from colonial American jurisprudence to

Chilean and South African law. Due to the expansion of our staff, for the first time, we have identified two

distinct editing teams: International Law and United States Law. This division allows for the balanced selection

of pieces addressing not only diverse legal topics, but those representing many different geographic areas. Our

staff was stunned by the amount of submissions we received from interested students and, most importantly, the

quality of the texts. Just as in our inaugural edition, we were only able to publish a small fraction of the worthy

submissions we received this semester. We remain humbled by the incredible work the members of our Brown

University community have shared with us. As we continue to expand our organization, we hope to feature even

more voices representing increasingly diverse perspectives on legal issues. Along those lines, we will feature

some pieces on our website that we received but were not selected for publication, and the ?Blog? will

continually publish new content.

It is with deep gratitude that we thank both the hard-working members of our editorial board, our

thoughtful writers, our new ?Blog? staff, and our faculty advisor, Ari Gabinet, all of whom made this edition

possible despite the difficulties of a remote semester amidst a global pandemic. We also extend warm thanks to

our sponsors, the Brown Legal History Workshop and the Princeton Review, whose partnerships and generous

funding have permitted our continued operation. We look forward to our continued collaboration on Brown?s

first and only law review as we strive to further magnify voices addressing emerging global legal issues. May

our words inspire a more just world.

Sincerely,

Jordan Kei-Rahn '21 Filippo Zinni '21

Editors-in-Chief

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TABLE OF

CONTENTS

The Kosovo War: Wartime Sexual Violence

Jurisprudence and State Action Toward Recovery

Ilana Duchan

Land Grabs and the Reach of the Law:

Reforming Large-Scale Land Acquisition in

Sub-Saharan Africa

Alexander Fasseas

Chile?s Constitutional Renewal: A Lesson to be

Learned?

Marina Hunt

The Zenger Jury: A Mechanism of Legitimizing

Popular Dissent

Jordan Kei-Rahn

Was Privacy a Mistake? An Examination of

Privacy, Liberty, and Equality in Reproductive

Freedom

Rakhi Kundra

Lynch v. Donnelly: the Supreme Court's

Unconstitutional History of Favoring Christianity

Gabriel Merkel

Ruth Bader Ginsburg: The Trojan Horse

Silas J Monje

Preferential Bias for Plaintiffs in Medical

Negligence Litigations

Ashwin Palaniappan

The Right To Privacy in the COVID-19 Era: The

Case of Aarogya Setu

Laila Rodenbeck

. . . . . page 7

. . . . . page 20

. . . . . page 28

. . . . . page 34

. . . . . page 42

. . . . . page 52

. . . . . page 58

. . . . . page 65

. . . . . page 75

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THE KOSOVO WAR: WARTIME

SEXUAL VIOLENCE

JURISPRUDENCE AND STATE

ACTION TOWARD RECOVERY

Ilana Duchan

ABSTRACT

The Kosovo War (February 1998?June 1999) was a brutal conflict characterized by the strategic implementation of sexual

violence as a weapon of war against ethnic Albanian Kosovars. Over 20 years later, Kosovo?s more than 20,000 survivors

of weaponized rape are dealing with the far-reaching effects of such trauma. This paper provides a legal and historical

analysis of the Kosovo War, with a focus on how the codification of rape as a weapon of war both fits within an

international legal framework and provides a novel conception of human rights. It explores the jurisprudence surrounding

the illegality of such egregious human rights violations and then discusses how Kosovo under the leadership of former

President Atifete Jahjaga offers one promising model of how to support and rehabilitate victims of wartime sexual

violence.


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The Kosovo War: Wartime Sexual Violence Jurisprudence and State Action Toward Recovery

Introduction

the implications of President Jahjaga?s innovative

Between February 1998 and June 1999, the Kosovo War

wreaked havoc on the Balkans as Serbia, led by President

Slobodan Milo?evi?, perpetrated blatant human rights

violations against Albanian Kosovars. This conflict can be

approach for the global human rights regime. Her

reparative, restitutive, and supportive agenda promoted

healing for survivors of wartime sexual violence, a

response that serves as a viable recovery model for other

characterized not only by its campaign of ethnic cleansing

conflict-afflicted states worldwide. On the 20th

through mass detentions, abductions, torture, and killings

but also by Serbia?s strategic implementation of sexual

violence against Albanian Kosovars as a weapon of war.

Sexual violence in wartime is an age-old phenomenon, as

oppressors throughout history have found it a highly

effective tool of suppression when targeting particular

groups. For Kosovo?s more than 20,000 survivors of

weaponized rape, sexual violence has left a haunting,

long-lasting impact? even beyond the tragic loss of

homes, livelihoods, and loved ones that these victims

continue to grapple with today in the wake of Milo?evi??s

ethnic cleansing campaign. Matters of justice for survivors

of human rights violations are an ongoing question,

informed by international politics as well the as collective

and individual memories and needs of survivors. During

her tenure from 2011 to 2016, former President of Kosovo

Atifete Jahjaga took a novel approach by prioritizing

justice for survivors who endured sexual violence during

anniversary of the Kosovo War, Kosovo is a case study of

how rape was systematically used as a weapon of war that

violated both victims?human rights and universal laws of

war. The eventual intervention by the international legal

community illustrates the limitations of international

justice systems, which often introduce valuable legal

frameworks while simultaneously proving ineffective at

ending the impunity of human rights abusers. Such hollow

mechanisms bring Kosovo?s own response to the

brutality?s aftermath into sharp relief by contrast, as the

response provides a workable model for rehabilitating

victims and pursuing justice. The Kosovo case illustrates

the extent to which progress has been made in international

women?s rights and how a country should and should not

pursue accountability for perpetrators of mass, gendered

sexual violence.

Historical Context: The Kosovo War and Sexual

Violence

the war. More than 20 years after the conflict, Kosovo

In 1945, the autonomous provinces of Kosovo and

demands the justice and accountability that Serbia

Vojvodina were established within the post-World War II

continues to withhold. In the interim, however, Kosovo

Serbian Republic, one of six constituent republics within

serves as a model for how a recovering state should

the Socialist Federal Republic of Yugoslavia (comprised of

respond to victims?needs as it calls for legal justice while

Bosnia, Herzegovina, Croatia, Macedonia, Montenegro,

providing support in the aftermath of wartime atrocities.

Slovenia, and Serbia). Under Josip Broz Tito, the Serbian

This analysis will provide historical background for the

conflict and discussion about the legal context of the

human rights violations and the ways in which offenders in

the Kosovo War have (and have not) been held

accountable. It then delves into formulations and

applications of justice for victims and goes on to discuss

authorities repressed the Kosovars. When Tito died in

1980, protestors called for the province to become a

republic, spurring more oppression from Serbia. Slobodan

Milo?evi? was elected President of Serbia in 1989 through

calls to win back Kosovo (a majority ethnically Albanian

country) for Serbia. This platform reopened nationalist


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wounds dating back to the end of Ottoman control of the

region, which had resulted in a series of conflicts

concerning control of Kosovar territory during the early

20th century. Following the establishment of Communist

Yugoslavia, Kosovo was granted increasingly autonomous

status over the next decades and ultimately gained virtual

self-government in 1974. While the Albanian ethnic

majority in Kosovo sought further autonomy for Kosovo,

ethnic Serbian Kosovars called for closer ties to Serbia,

which resulted in mounting tensions in the region. In

not only did Kosovo have the lowest incidence of rape in

Yugoslavia, but also that 71 percent of incidents were

between people of the same nationality. 3 This trend would

take a disturbing turn.

Between February 1998 and June 1999, the Serbian forces

under Milo?evi? perpetuated gross human rights abuses

against Kosovar Albanians. Most notably, a 2000 Human

Rights Watch report found that sexual violence was used

as a strategic, systematic weapon of war in Kosovo in

order to achieve ethnic cleansing of the Albanian Kosovar

February 1989, Milo?evi??s Serbian administration

population. The report vividly details how Albanian

declared martial law in Kosovo and ended 15 years of

Kosovar autonomy. The subsequent Serbian crackdown

resulted in widespread school closures, a major shutdown

of access to medical resources, and the dismissal of 90

percent of Albanian Kosovar workers from their jobs.

Against the backdrop of growing strain in Bosnia and

Croatia, Milo?evi? launched further oppression against the

Albanian majority in Kosovo. Although the Kosovars

initially attempted a peaceful response under the leadership

of President Dr. Ibrahim Rugova, the Kosovo Liberation

Army (KLA) formed in the early 1990s and would later

launch guerilla attacks against Serbians in Kosovo

beginning in 1998. Belgrade, the capital of Serbia,

retaliated by mobilizing its police and army. This hostility

justified a now-infamous Serbian memorandum that

characterized Kosovar Serbs as victims of ?neo-fascist

aggression in Kosovo.? 1 At that time, Serbian propaganda

disseminated the sentiment that ?Albanians rape anyone

they can get hold of.? 2 However, a 1989 study showed that

Kosovar women were targeted by Serbian propaganda in a

way that allowed the Serbian public to justify this

gendered aggression, whereby Albanian Kosovar women

were ?portrayed as indiscriminately fecund and ?

open-legged, stupid, uneducated women ready to have

sex.? 4 The report describes in incredibly graphic detail the

violent sexual assaults perpetrated by Serbian soldiers

against Albanian Kosovar women. It strikingly concludes

that, during the Kosovo War, ?rapes were not rare and

isolated acts committed by individual Serbian or Yugoslav

forces, but rather were used deliberately as an instrument

to terrorize the civilian population, extort money from

families, and push people to flee their homes.? 5 Rape was

thereby a calculated tactic used to force ethnic Albanians

from Kosovo.

Gender and ethnicity were intrinsically entwined in cases

of weaponized rape in the Balkans. Rape was used as a

strategic, systematic tool to achieve ethnic cleansing of

Kosovar Albanians, with rape ?projected as a desire for

1. Roger Cohen, ?The World: Past Reason; Yes, Blood Stains the Balkans. No, It?s Not Just Fate,? The New York Times, October 4, 2008,

https://www.nytimes.com/1998/10/04/weekinreview/the-world-past-reason-yes-blood-stains-the-balkans-no-it-s-not-just-fate.html.

2. Alex J. Bellamy, Kosovo and International Society (United Kingdom: Palgrave Macmillan, 2002), 7.

3. Ibid 3.

4. Human Rights Watch, Kosovo: Rape As A Weapon of ?Ethnic Cleansing? (United States: Human Rights Watch, 2000), 1,

https://www.hrw.org/reports/2000/fry/index.htm#TopOfPage.

5. Human Rights Watch, Under Orders: War Crimes in Kosovo (United States: Human Rights Watch, 2001), 130,

https://www.hrw.org/sites/default/files/report_pdf/kosovo_full_low.pdf.


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biological domination through arbitrary control of the

bodies and reproductive capacity of the targeted

population.? 6 One scholar remarks that, in the parallel case

of sexual violence in Bosnia, ?not because they are

women, but because the women are Muslim, Croatian, or

Serbian they are raped. And yet because they are women,

men are using against them their most effective weapon:

rape.? 7 In addition, largely in reaction to this widespread

regional violence, ?family, already a strong institution in

the Albanian community, regained strength and became

restructured as a new source of identity and resistance.? 8

However, as tensions escalated during the conflict in

Kosovo, this Albanian Kosovar cultural sanctity of the

family was increasingly preyed upon. Weaponized sexual

violence exploited cultural stigmas: victims feared family

sanctions, women anguished over giving birth to children

of the enemy, and men felt ashamed of their failure to stop

the rape and violation of their homes and women. The

depravity of these rapes was profound. As noted by

professor and feminist scholar Laura Sjoberg, ?[I]f war is

hell, then war and genocide are gendered hell.? 11 In this

manner, rape was strategically deployed to perpetuate the

breakdown of Kosovar society, and this imploded

foundational family units by exploiting traditional values.

In response to this violence, the North Atlantic Treaty

Organization (NATO) attempted peace talks in March

1999, but when Serbia refused to accept a NATO presence

in Kosovo, NATO launched Operation Allied Force. This

was an airstrike campaign that lasted 78 days before

Milo?evi? agreed to pull Serbian forces out of Kosovo in

June of 1999. A peace agreement was ultimately signed on

June 11, 1999, with Serb forces withdrawing from Kosovo.

The United Nations Interim Administration Mission in

Kosovo was then established in Prishtina and still exists

today, though with a smaller presence. Testimony from

former Kosovo President Atifete Jahjaga before the U.S.

trauma inflicted by rape insidiously persists for

House of Representatives Committee on Foreign Affairs

generations, since sexually transmitted diseases can impact

the fertility of their victims, women are ostracized for

bearing their rapists? children, and newborn babies are

often abandoned in order to ?wipe out the visible trace of

the sexual abuse.? 9 Serbian soldiers preyed upon women of

all ages, and many mothers recount their agony at not

revealed that, in total, there were 20,000 survivors of

weaponized sexual violence during the Kosovo War, and

that 800,000 Albanian Kosovars were displaced during the

conflict. The Kosovo War also resulted in the deaths of

approximately 13,000 people, and the 1,600 people who

remain missing are thought to be buried in mass graves. 12

being able to protect their daughters and young children

from the rape that they endured alongside them. 10 The

In February 2008, Kosovo officially declared its

independence from Serbia, and although the Republic of

6. Raphaelle Branche et al., ?Writing the History of Rape in Wartime,? in Rape in Wartime, ed. Raphaelle Branche and Fabrice Virgili and trans.

Helen McPhail (United Kingdom: Palgrave Macmillan, 2012), 10.

7. Ibid., 71.

8. Nita Luci and Linda Gusia, ??Our Men Will Not Have Amnesia?: Civil Engagement, Emancipation, and Transformation of the Gendered Public in

Kosovo,? in Civic and Uncivic Values in Kosovo: History, Politics, and Value Transformation, ed. Sabrina P. Ramet, Ola Listhaug, and Albert A.

Simkus (Budapest: Central European University Press, 2015), 201.

9. Branche et al., 13.

10. Atifete Jahjaga, ?Gender Based Violence in the Kosovo War,? interview by Olivia Hinch and Jonah Shrock, Brown Journal of World Affairs 26,

no. 1 (Fall/Winter 2019), 180.

11. Laura Sjoberg, Women as Wartime Rapists: Beyond Sensation and Stereotyping (New York: New York University Press, 2016), 23.

12. Kosovo?s Wartime Victims: The Quest for Justice: Written Testimony submitted before the U.S. House of Representatives Committee on Foreign

Affairs, 116th Cong. (2019) (statement of Atifete Jahjaga, former President of the Republic of Kosovo).


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Kosovo is not a member state of the United Nations, it is a

member of the International Monetary Fund and the World

Bank Group. While its sovereign status has been

diplomatically recognized by 98 United Nations member

states, Serbia? the very state that inflicted so much lasting

harm? still refuses to acknowledge Kosovo?s sovereignty.

This lack of recognition adds insult to the injury inflicted

by Serbia?s refusal to take legal responsibility in the wake

of its wartime transgressions.

Justice for Human Rights Abuses: Human Rights

Jurisprudence, the ICTY, and the Weapon of War

Framework for Rape

humane treatment of civilians during wartime. A key

feature is its stipulation in Article 27 that ?women will be

specially protected against any attack on their honour, and

notably against rape.? 13 However, the advent of the Cold

War introduced the perspective that women?s rights and

human rights were two separate spheres, a view that

persisted until a new wave of women?s rights activism in

the 1990s. A forerunner of this activism was the 1979

institution of the Convention on the Elimination of all

Forms of Discrimination Against Women (CEDAW), a

legally-binding agreement centered around equality for

men and women. While the convention called for an end to

discriminatory laws on the basis of gender and for

The cumulative effects of the legal aftermath of the

Kosovo War are mixed. Women?s rights, especially during

wartime, had gained international attention and evolved in

the years prior to the war, and top officials on both sides

would ultimately be tried before the International Criminal

Tribunal for the Former Yugoslavia (ICTY) in The Hague.

Significantly, the discourse surrounding the use of rape as

a weapon of war brought together human rights

jurisprudence surrounding both women and civilians

reproductive rights for women, it failed to ?mention

violence against women or sexual violence as a violation

of women?s rights.? Instead, it focused on ?the legal status

of women, broadly conceived.? 14 One milestone was the

1993 Second World Conference on Human Rights in

Vienna, which brought together prominent women?s rights

organizations to collectively recognize sexual violence

perpetrated by oppressive regimes around the world. In

particular, it focused on the Balkans during the 1990s, as

during wartime. This important overlap brought

well as the sexual slavery of ?comfort women? living

international visibility to victims of sexual violence during

the Kosovo War and ushered in a novel conception of war

crimes, which have had profound implications for the

implementation of human rights in other post-war contexts

worldwide. Nonetheless, despite these advances in

international legal recognition of weaponized sexual

violence, powerful wartime miscreants continue to evade

justice in the Balkans.

An important precursor to this international dialogue was

the 1949 Fourth Geneva Convention, which called for the

under Japanese rule during World War II. From this

conference came the landmark Vienna Declaration and

Program of Action, which called for international

condemnation of sexual violence used systematically

during armed conflict. Although the document explicitly

condemned ?massive violation of human rights especially

in the form of genocide, ?ethnic cleansing?and systematic

rape of women in war situations, creating mass exodus of

refugees and displaced persons,? it did not enumerate any

enforcement mechanisms. 15

13. Branche et al., 5.

14. Kerry F. Crawford. Wartime Sexual Violence: from Silence to Condemnation of a Weapon of War (Washington, D.C.: Georgetown University

Press, 2017), 4.

15. ?Vienna Declaration and Programme of Action,? United Nations Human Rights Office of the High Commissioner, June 25, 1993,

https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx.


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The following few years ushered in important precedents

for the global human rights regime. The Beijing Platform

for Action, born of the 1995 United Nations Conference on

Women, affirmed that ?women?s rights are human rights?

and issued a condemnation of all forms of violence against

up? and charged him with war crimes and crimes against

humanity perpetrated against Albanian Kosovars in

1999. 19 The ICTY also paved the way for the Rome Statute

of the International Criminal Court, which has been signed

by 123 states, to be adopted in 1998 and to enter into force

women, which included rape during war. 16 That same year, in 2002. This document ?enumerates sexual

the United Nations Human Rights Council created a

Special Rapporteur on Violence Against Women, marking

a significant step toward institutionalizing global responses

to gendered violence.

Against this backdrop of foundational human rights

jurisprudence, the ICTY made the hallmark declaration

that rape is a crime against humanity. With a mandate

lasting from 1993 to 2017, the ICTY was initially

established to investigate atrocities committed in Bosnia

and Croatia, and then expanded to include war crimes

committed later in Kosovo. Its goals, drawn from the

testimonies of 4,650 witnesses, were ?to bring to justice

violence? framed as including not only rape but also

?sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form?? as a crime

against humanity in Article 7 and as a war crime in Article

8." 20 This pivotal statute also created the International

Criminal Court, a key judicial body established to uphold

international justice in the 21st century. This court has

been instrumental in investigating and prosecuting war

criminals in countries including the Democratic Republic

of the Congo, Uganda, Sudan, Myanmar, and Afghanistan.

A later turning point arrived through Security Council

Resolution 1820, the 2008 international recognition of

persons responsible for violations of international

sexual violence as a weapon of war that importantly

humanitarian law; to contribute to the restoration of peace

by holding these persons to account; to bring justice to the

victims; [and] to deter further crimes.? 17

Significantly, in addition to several other high-profile

Serbian officials, the ICTY tried Milo?evi? as ?the first

sitting head of state to be indicted for war crimes by an

international tribunal.? 18 The court found that ?Slobodan

Milo?evi? was at the apex of a joint enterprise to commit

the crimes described in the indictment and to cover them

?carved out separate space for the consideration of sexual

violence as a tactic of war on the Security Council?s

agenda.? 21

This specific framing of sexual violence during conflict as

a weapon of war is critical to modern understandings of

war crimes, especially those committed during the Kosovo

War. Scholar Kerry F. Crawford discusses the ?weapon of

war? framework as a strategic political tool used by

advocates in order to push forward women?s rights under

16. ?Hillary Clinton Declares ?Women's Rights Are Human Rights,?? PBS, October 30, 2017,

www.pbs.org/weta/washingtonweek/web-video/hillary-clinton-declares-womens-rights-are-human-rights.

17. ?Prosecution Case - Kosovo,? United Nations International Criminal Tribunal for the Former Yugoslavia, accessed November 2019,

www.icty.org/en/content/prosecution-case-kosovo.

18. Ending Impunity In Kosovo: Closing The Accountability Gap For Crimes Committed During The Kosovo Conflict: Testimony before the U.S.

House of Representatives Committee on Foreign Affairs, 116th Cong. 6 (2019) (statement of Dr. Paul R. Williams, Rebecca I. Grazier Professor of

Law and International Relations at American University and President and Co-Founder of the Public International Law and Policy Group).

19. Ibid., 92.

20. Crawford, 46.

21. Crawford, 92.


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the umbrella of issues of security. She argues that framing

rape as a weapon of war catalyzes international action

because it maximizes the visibility of the issue on the

global level and brings about more effective responses

from international actors. ?When cast as a broad spectrum

of gender-based abuses, or when discussed as a result of

gender norms in peacetime ? conflict-related sexual

violence does not gain the same traction with states and

security-focused institutions,? she notes. Instead of coming

across as ?too nuanced, messy, and intractable,? this

the weapon of war paradigm suits the needs of women?s

rights advocates because ?increased awareness and

implementation of political commitments outweigh the

short-term risks of narrowing the agenda.? 23 Approaching

sexual violence during conflict as a weapon of war is thus

a constructivist, norm-creating technique promulgated by

the international legal discourse surrounding the Kosovo

War. It emphasizes the importance of positioning the issue

to establish it as an unacceptable weapon of war and to

catalyze ?stronger and more consistent, even if still flawed

definition makes sexual violence ?limited but ? clear, and uneven, international responses to wartime

conspicuous, and easily understood.? 22 Clearly identifying

sexual violence as a gendered weapon via a norm-creating

framework makes the issue easier to recognize and address

for security-minded states and organizations.

One potential caveat of the weapon of war framing is that

it primarily identifies only women as victims. This narrow

categorization effectively renders other victims of sexual

violence? men and boys, civilians of other genders,

female combatants, children born of rape, and civilians of

minority ethnicities? invisible and silent. Crawford also

points out a tension between the weapon of war framework

and the goals of the women?s human rights agenda.

According to her, implementation of this framework is

more in line with the anti-sexual violence agenda, which

has been ?shaped by both normative concerns and

powerful political interests.? This stance contrasts with the

violence.? 24

Despite advancements of human rights jurisprudence in

recognizing the gendered nature of wartime sexual

violence, legal mechanisms engaged in the aftermath of the

Kosovo War have reaped hollow dividends. During the

proceedings of the ICTY, Milo?evi? refused to speak to

court-appointed defense lawyers and was vocal in

questioning the ICTY?s legitimacy. His death in 2006

toward the end of his trial prevented an official verdict

from being reached, and Prosecutor Carla Del Ponte

lamented at the time that ?Milo?evi??s death deprived his

victims of the justice they needed and deserved." 25 While

the ICTY was influential in classifying rape as a crime

against humanity, survivors continue to feel deprived of

justice because of Milo?evi??s lingering impunity as

Serbian war crime denial continues. 26

women?s human rights agenda, which Crawford

This accountability gap extends beyond Milo?evi?: during

characterizes as focused on women?s human rights,

empowerment, and gender norms. However, she states that

its 24-year mandate, the ICTY indicted 161 individuals,

yet convicted only 90 people and acquitted 19 others. 27

22. Ibid., 7.

23. Crawford, 7.

24. Ibid., 57.

25. Chandra Lekha Sriram, Johanna Herman, and Olga Martin-Ortega, War, Conflict and Human Rights: Theory and Practice, 3rd ed. (New York:

Routledge, 2018), 167.

26. Gordana Knezevic, ?Milosevic 'Exonerated'? War-Crime Deniers Feed Receptive Audience,? Radio Free Europe/Radio Liberty, August 9, 2016,

https://www.rferl.org/a/milosevic-war-crime-deniers-feed-receptive-audience/27910664.html.

27. Ending Impunity in Kosovo, 5.


13


Moreover, the tribunal indicted only seven Serbian acknowledge the violations committed, the global

officials for crimes committed in Kosovo, and ?not a single community fails to fully recognize and mete out justice for

one of these seven indictments included an explicit count Kosovo?s more than 20,000 victims of weaponized rape.

of rape as a crime against humanity,? including The staggering violence committed during the war has

Milo?evi?. 28 Concurrently, the United Nations Interim multi-generational repercussions, and the vast majority of

Administration Mission in Kosovo (UNMIK) created Kosovar victims add their violators?impunity to their own

hybrid international?domestic courts in order to investigate set of burdens.

and prosecute war crimes cases in local courts. Because

Kosovo's Recovery: A Mixed Success

UNMIK lacked resources and time during its eight-year

mandate, only a small number of its more than 1,000 cases

Beyond the tragic loss and displacement faced by Albanian

were actually prosecuted. In addition, the European Union

Kosovars, many of the 20,000 survivors of weaponized

Rule of Law Mission in Kosovo (EULEX) was established

rape are still struggling to recover 20 years after the

in 2008 in order to support Kosovar legal institutions with

conflict. However, the governance of the former President

the prosecution of war crimes, yet left 900 case files

of Kosovo Atifete Jahjaga was ?critical in advancing the

unresolved at the end of its mandate in 2018. Frustratingly,

recognition of survivors of sexual violence as civilian war

?as Kosovo and EULEX only have jurisdiction over

victims, demanding more support for them from both the

individuals within Kosovo?s territory, they can take

government and society.? The approach she spearheaded

extremely limited action to prosecute? war criminals who

can be looked to as a model for how to address the needs

are abroad. 29

of survivors in a post-conflict era, despite the opportunity

for improvement. 31

Additionally, the Serbian War Crimes Chamber has done

little to advance accountability for crimes committed by

Jahjaga was Kosovo?s first female, first non-partisan, and

Serbian forces during the conflicts in Bosnia, Croatia, and

youngest president, serving from 2011 to 2016. Her

Kosovo during the 1990s. Its war crimes units have

presidency filled a power vacuum left by the truncated

chronically suffered from ?lack of political will, adequate

term of her predecessor due to a constitutional crisis over

resources, and weak witness support mechanisms.? 30 Very

the validity of the previous election. 32 She rose out of

few of its prosecutions have been of high-ranking officials,

relative obscurity by earning recognition for her service as

and only a handful of cases have addressed crimes

Deputy General Director of the Kosovo Police force, in

committed in Kosovo or wartime sexual violence.

which she held the highest law enforcement rank ever

occupied by a woman in Southeastern Europe. In a 2019

Thus, despite the presence of international and domestic

interview with the Brown Journal of World Affairs,

legal institutions, perpetrators of war crimes during the

Jahjaga described the broken the state of country that she

Kosovo War continue to evade justice. By failing to

28. Ending Impunity in Kosovo, 6.

29. Ibid., 9.

30. ?World Report 2019: Serbia/Kosovo Events of 2018,? Human Rights Watch, January 17, 2019,

https://www.hrw.org/world-report/2019/country-chapters/serbia/kosovo.

31. Valerie Plesch, ?A Dark Legacy: The Scars of Sexual Violence from the Kosovo War,? Politico, April 18, 2019,

www.politico.eu/interactive/a-dark-legacy-the-scars-of-sexual-violence-from-the-kosovo-war/.

32. Valerie Plesch, ?On the Road with Kosovo's First Female President,? Al Jazeera, October 21, 2015,

www.aljazeera.com/programmes/women-make-change/2015/10/road-kosovo-female-president-151021070704139.html.


14

inherited in the aftermath of war:

Twenty years ago, we inherited a country that was

totally destroyed, not only from an infrastructure point

of view, but also from a human rights perspective ?

Our neighbor Serbia is in denial and will not cooperate

with the institutions of Kosovo and international

institutions and will not disclose where the remains of

our loved ones are ? It took us almost 15 years to

open that chapter of sexual violence, because that was

a taboo topic for our society. 33

A December 2017 report published by Amnesty

International commends President Jahjaga for being ?one

of the few public figures recognized and acknowledged by

survivors for her contribution? to seeking justice and

promoting recovery for survivors of sexual violence during

the Kosovo War. 34 Because of Kosovo's governance

structure as a parliamentary democracy, a president?s role

is often that of a figurehead. However, ?Jahjaga turned

herself into an approachable advocate for the public,?

according to Igballe Rogova, head of the Kosovo Women?s

Network. ?She would listen for hours to them, looking

them straight in the eye. And she would put her arms

around them. It changed everything.? 35 Jahjaga?s

validation of survivors thus encouraged dialogue about the

taboo of sexual violence, empowering them to break their

silence. This form of material empathy can be emulated by

other world leaders who, in the wake of conflict, wish to

foster a culture of empowerment, healing, and recovery

rather than a national environment that facilitates moving

forward at the cost of silence and unresolved trauma.


In March 2014, Jahjaga established the National Council

for Survivors of Sexual Violence During the War in

Kosovo, a body led by the President of Kosovo to

?coordinate the work and activities of institutions and the

civil society ? for the treatment of survivors of sexual

violence during the war.? 36 The Council includes both

government and civil society representatives, and it

amassed international support while also demonstrating the

state?s support for survivors. A major accomplishment of

the Council and key step forward for Kosovo was the

passage of the Law on Amendment and Supplementation

of the Law on the Status and Rights of Martyrs, Invalids,

Veterans, Members of the KLA, Civilian War Victims and

their Families. The passage of this amendment to the

original law was significant, as it signaled national

recognition of the status of victims of sexual violence,

allowing them to receive support from the state alongside

other categories of war victims. 37 She is also recognized

for her support for ?commemorations and tributes? to

survivors, including the powerful Heroinat memorial and

?Thinking of You? art installation, which challenge

?stigma and silence.? 38 After her presidential term,

President Jahjaga founded the Jahjaga Foundation, which

is dedicated to fulfilling the needs of Kosovar women and

youth, to achieving social change in Kosovo, and to

advancing democracy in the Balkans. President Jahjaga

thus leveraged her platform to advocate for survivors of

sexual violence during the Kosovo War, promoting

international recognition of the violation of their rights and

33. Jahjaga, 179-180.

34. Amnesty International, Wounds That Burn Our Souls: Compensation for Kosovo?s Wartime Rape Survivors, But Still No Justice (London:

Amnesty International, 2017), 42, https://www.amnesty.org/download/Documents/EUR7075582017ENGLISH.PDF.

35. Joanna Kakissis, ?In Kosovo, War Rape Survivors Can Now Receive Reparations. But Shame Endures For Many,? NPR, April 6, 2018,

www.npr.org/sections/.

36. ?National Council for the Suvivors of Sexual Violence in Conflict,? President of the Republic of Kosovo - Hashim Thaçi, accessed November

2019, https://president-ksgov.net/en/national-council-for-the-suvivors-of-sexual-violence-in-conflict/.

37. Ibid.

38. Amnesty International, 42.


15


advocating for continued domestic support of survivors. woman. 41 Survivors of sexual violence in Kosovo today

These measures were aimed at addressing the cyclical, can also receive support through organizations that provide

generational trauma inflicted upon victims of sexual medical services and professional counseling, such as the

violence.

Kosova Rehabilitation Centre for Torture Victims.

According to the aforementioned Amnesty International

Initiatives and civil society networks with similar goals

report, these services enable survivors ?to recount their

have also emerged around the world in the last several

trauma and help them face challenges, including the lack

decades. The drive to end weaponized rape extends beyond

of appropriate and free health care; no employment or

Kosovo. For example, the Global Network of Victims and

means to sustain themselves, and the stigma that prevents

Survivors to End Wartime Sexual Violence (SEMA)

some from even talking to their closest family about their

includes members from more than 20 countries (including

experience.?

Kosovo) and works to promote care and justice for

42

survivors of more than 90 years of conflict. 39 SEMA works Despite these benefits, the reparations program for

in tandem with the Dr. Denis Mukwege Foundation, an survivors of sexual violence is still in its infancy and is

organization that promotes best practices for holistic flawed. In addition, of concern for survivors and

treatment of wartime sexual violence and whose non-governmental organizations alike is the verification

eponymous founder is a Congolese gynecologist and process to ensure that those who seek support are indeed

Nobel Peace laureate. This international approach to survivors. The government?s discourse surrounding this

healing and network-formation broadens Kosovo?s impact process is also troubling. Assembly members initially

and seeks to establish global norms against wartime sexual voted against the amendment that would provide support

violence.

to victims, ?arguing that the inclusion of survivors of

sexual violence would burden Kosovo?s budget, debating

In 2017, the progressive legislation spearheaded by

the accuracy of possible claims, and went as far as

President Jahjaga gained traction after years of deliberation

debating administration of ? rape tests twelve years after

when the Kosovar government apportioned a budget for

the war.?

verifying the status of sexual violence survivors through

43 The verification process not only requires

survivors to relive their trauma but also sometimes rejects

the Government Commission to Recognize and Verify

Survivors of Sexual Violence During the Kosovo War. 40 qualified applicants. Moreover, while the government?s

encouragement of women to apply for the pension has

This critical decision also gives verified survivors the

helped many women cast off the stigma of being victims,

official status of civilian victims of war, and as of 2018,

many other survivors hesitate to apply due to the residual

makes them eligible for a new reparations program by

culture of shame surrounding sexual violence, and those

which victims receive a monthly pension that is equivalent

who do apply run the risk of their applications being

to roughly 87 percent of the typical salary of a Kosovar

39. ?SEMA: The Global Network of Victims and Survivors to End Wartime Sexual Violence,? Dr. Denis Mukwege Foundation, accessed November

13, 2020, https://www.mukwegefoundation.org/sema/.

40. ?Time For Justice For Survivors of Conflict Related Sexual Violence in Kosovo,? United Nations Kosovo Team, September 10, 2018,

unkt.org/2018/06/20/time-justice-survivors-conflict-related-sexual-violence-kosovo/.

41. ?In Kosovo, Legal Recognition of War-Time Sexual Violence Survivors after 18 Years,? UN Women, October 19, 2017, eca.unwomen.org.


43. Luci and Gusia, 211.


16


rejected despite being genuine. 44 Another shortcoming is of Kosovo?s government as the war retreats into the past.

that services are only available for survivors of attacks They note that the ?post-war political and social landscape

perpetrated during the officially-recognized start and end has become dominated by narratives of sacrifice,

times of the war. The rules also exclude Kosovar Serbs and martyrdom and victor, leaving no room for the painful

other minorities who suffered alongside the Kosovar stories and experiences of war. The Kosovar leadership

Albanian majority. 45 Furthermore, UN Women points out legitimates its position through this new symbolic order,

that while there are also male survivors of sexual violence and the marginalization of these experiences is often

in Kosovo, male victims are less likely to report their claimed as a necessity in building reconciliatory relations

trauma and there are few services currently dedicated to and promoting a strategy of forgive and forget.? 49 Hence,

their needs. 46

the perception today that President Hashim Thaçi is buying

off survivors through initiatives like the pension program

While government initiatives toward healing attempt to

makes survivors wary that Serbia?s impunity will persist.

offset the burdens of victims, Kosovo?s survivors

Serbian-Kosovar relations give survivors additional causes

collectively feel that until the lingering impunity of

for frustration. It is likely that in its ongoing negotiations

Serbia?s perpetrators is ended, they are being denied full

over diplomatic recognition of Kosovo as an independent

justice. Beginning under President Jahjaga?s presidency,

and sovereign state, Serbia could leverage such recognition

survivors have been vocal in demands for Serbia to face

in order to push Kosovo to scale back its demands for

the consequences of its crimes. For example, a 2012

reparations.

protest by the Kosovo Women?s Network called for a

50 Thus, Kosovo?s government could reduce

justice for victims to a bargaining chip in the coming

public apology by the Government of Serbia for past war

years, sidelining an end to Serbian impunity in favor of

crimes, the return of all missing persons, justice for crimes

pursuing policies that reap more politically pressing

and sexual violence during the war, and compensation for

moral and economic damages. 47 benefits for national sovereignty.

The organization has also

51

been vocal about ending the stigma surrounding rape and While complimentary of President Jahjaga?s initiatives, the

calling for an end to Serbia?s impunity. One slogan reads: aforementioned Amnesty International report blasts prior

?We do not want flowers, we want justice for men and and subsequent Kosovar administrations for not doing

women raped during the war.? 48 Moreover, academics Nita enough for survivors of sexual violence during the Kosovo

Luci and Linda Gusia are critical of the shifting narrative War. The report highlights the UN Basic Principles on the

44. Karen McVeigh, ?After Two Decades, the Hidden Victims of the Kosovo War Are Finally Recognised,? The Guardian, August 3, 2018,

www.theguardian.com/global-development/2018/aug/03/after-two-decades-the-hidden-victims-of-the-kosovo-war-are-finally-recognised.

45. Ibid.

46. ?Path to Justice for Survivors of Kosovo's Sexual Violence: Q&A with Siobhan Hobbs,? UN Women, August 15, 2016,

www.unwomen.org/en/news/stories/2016/8/q-and-a-with-siobhan-hobbs.


48. ?Time For Justice For Survivors of Conflict Related Sexual Violence in Kosovo,? United Nations Kosovo Team, June 20, 2018,

https://unkt.org/2018/06/20/time-justice-survivors-conflict-related-sexual-violence-kosovo/.


50. Dardan Hoti, ?Can Kosovo Get Payback for Wartime Devastation?? Balkan Insight, November 22, 2019,

balkaninsight.com/2019/11/06/can-kosovo-get-payback-for-wartime-devastation/.

51. ?Hashim Thaçi: 'Kosovo Will Have a UN Seat',? Al Jazeera, November 9, 2013, video, 25:00.

https://www.aljazeera.com/program/talk-to-al-jazeera/2013/11/9/hashim-thaci-kosovo-will-have-a-un-seat/.


17


Right to a Remedy and Reparation for flagrant violations

of international humanitarian and human rights law, which

include five forms of reparation: restitution, compensation,

post-war governmental regimes, and international and

domestic non-governmental organizations. The Rome

Statute of 1998 was monumental in its codification of

rehabilitation, satisfaction, and guarantees of sexual violence and creation of the International Criminal

non-repetition. Only recently has the government begun to

contribute to these reparative measures through the

pension program and the recognition of survivors?status

under law. However, Serbia has yet to accept survivors?

allegations or contribute monetarily to victims of wartime

rape. In fact, Amnesty International writes scathingly that

?Serbia has overwhelmingly failed in its responsibility to

bring Serbian police, paramilitaries and members of the

Yugoslav Army to justice, despite the undeniable body of

evidence for their criminal responsibility.? 52

The Kosovo War thus demonstrates how sexual violence

can be systematically implemented as a weapon of war, as

well as how its damaging ramifications can be felt long

after war ends. It also illustrates how the framing of rape as

a weapon of war can reshape conceptions of women?s

human rights. While wrongs were committed on both sides

during the conflict, Milo?evi??s Serbia is responsible for

the rapes of 20,000 Albanian Kosovars but has yet to

accept responsibility for these crimes. Although Kosovo?s

Court, and gleanings from the Kosovo War were

instrumental in the statute?s creation. However, the

problem of sexual violence as a weapon of war extends far

beyond Kosovo. In the second half of the 20th century

alone, infamous conflicts throughout the Balkans, Rwanda,

the Democratic Republic of the Congo, Colombia, and

elsewhere were also characterized by the pernicious use of

rape. Moreover, despite international human rights

jurisprudence, rape is used as a highly effective weapon of

war and genocide even today. In the ongoing Rohingya

genocide in Myanmar, rape is utilized strategically to

subjugate the Rohingya population and drive it out of the

Rakhine State. 53 Similarly, Muslim Uyghur women have

been specifically targeted in the Chinese government?s

campaign of ethnic cleansing: they are forcibly sterilized,

raped, and separated from their children, all of which

constitute crimes against humanity. 54

As the Kosovo case demonstrates, a state?s process of

recovery from horrific wartime violence is long, arduous,

survivors continue to be plagued by cultural stigma and and uncertain. President Jahjaga?s empathetic,

physical and psychological trauma, President Jahjaga?s compassion-driven efforts toward implementing

administration ushered in a new era of support and

compensation for victims. However, key groups of other

survivors of sexual and other wartime violence have yet to

be validated in their quest to receive support and

reparations.

It is imperative that weaponized rape receives the

multifaceted recognition and handling that the Kosovo

case highlights? from the international legal system,

therapeutic healing infrastructure, distributing reparations,

and pursuing justice for survivors have yielded promising

results, allowing survivors to feel seen and heard.

Shortcomings aside, her administration?s targeted approach

to addressing the ramifications of weaponized sexual

violence should serve as a compassionate and just model to

other nations whose survivors continue to struggle in the

wake of war. Moreover, as Serbia continues to evade


53. Thalisma Begum, ?Opinion: Rape Is Not a by-Product of War in Myanmar ? It Is a Strategy of It,? The Independent, December 9, 2019,

www.independent.co.uk/voices/war-myanmar-burma-rohingya-muslims-a9239521.html.

54. Elizabeth M. Lynch, ?China?s attacks on Uighur women are crimes against humanity,? The Washington Post, October 21, 2019,

https://www.washingtonpost.com/opinions/2019/10/21/chinas-attacks-uighur-women-are-crimes-against-humanity/.


18


justice through its lingering impunity, international

criminal tribunals such as the ICTY must be reformed in

order to make the implementation of justice timely,

thorough, and preventative of future atrocities. The

minimal repercussions faced by war criminals during the

Kosovo War sets the dangerous precedent that, under

current international justice systems, perpetrators are able

to literally get away with murder. A legal system that has

the ability to enforce laws is one that can potentially deter

powermongers from committing the world?s next episode

of ethnic cleansing.

Now more than ever, it is imperative that conflict-ridden

states and countries seeking to promote human rights look

to Kosovo to learn from both its mistakes and innovations

in providing sustainable remedies to survivors of

weaponized sexual violence. Kosovo continues to contend

with an imperfect international legal system that has

enabled wartime transgressors to avoid punishment for

their compounded violations of human rights, steeped in

human rights jurisprudence surrounding both women and

civilians during wartime. The Kosovo case raises to the

global stage the crucial ongoing question of appropriate

legal and policy recourse in the aftermath of gendered

sexual war crimes. In the face of unaccountability from its

greatest perpetrator, Kosovo underscores the importance of

both justice and reparations to relieve survivors? heavy

burdens.


19

LAND GRABS AND THE REACH OF

THE LAW: REFORMING

LARGE-SCALE LAND

ACQUISITION IN SUB-SAHARAN

AFRICA

Alexander Fasseas

ABSTRACT

This paper proposes two legal reforms designed to minimize the adverse impacts of large-scale land acquisition (LSLA)

in sub-Saharan Africa, focusing primarily on deals between foreign investors and state and local-level governments. The

first proposed reform calls for the passage of legislation mandating that foreign lessees and host countries engage in a

meaningful, informed discourse with local farmers. The second reform proposes the strengthening and expansion of

investors?contractual obligations in conjunction with more robust enforcement mechanisms. These reforms will first be

contextualized within the architecture of agricultural LSLAs and the broader political history of sub-Saharan Africa. Next,

the positive and negative impacts of LSLAs? notably land conflict, inadequate employment and land use compensation,

environmental impacts, and food insecurity? will be assessed. Finally, this paper will explain how the two proposed

reforms can combat the negative consequences of LSLAs in sub-Saharan Africa and maximize their positive outcomes by

filling the current legal vacuum.


20

Land Grabs and the Reach of the Law: Reforming Large-Scale Land Acquisition in Sub-Saharan Africa

Introduction

the architecture of agricultural LSLAs and the broader

political history of sub-Saharan Africa? in particular, the

The 2007?08 global financial crisis generated record high

legacy of colonialism, weak governance and corruption,

food prices, precipitating a global food crisis. This crisis in

inadequate land registration practices, and the overlapping

turn sparked an unprecedented surge in demand for arable

and chaotic relations between state actors and local

land in the Global South. Foreign investors scrambled to

populations. I will then characterize the positive and

buy up millions of hectares (ha) of farmland in developing

negative outcomes of LSLAs? notably land conflict,

countries through deals known as large-scale land

inadequate employment and land use compensation,

acquisitions (LSLA). In recent years, a significant plurality

environmental impacts, and food insecurity. Finally, I will

of these land deals? 37 percent as of 2018? have occurred

explain how the two proposed reforms can combat the

in sub-Saharan Africa (SSA). This paper focuses on the

LSLAs in this region. 1

negative consequences of LSLAs in sub-Saharan Africa

and maximize their positive outcomes by filling the current

Bolstered by the liberalization of agricultural markets and

collective land policies in the developing world, investors

legal vacuum to strengthen governance and empower

communities.

engaged in an unprecedented ?land grab.? 2 Critics decry

the wave of LSLAs as a neocolonial venture: transnational

land purchases often lead to the exploitation and

displacement of indigenous farmers and the widespread

environmental degradation of investment sites and their

History and Features of Contemporary LSLAs in SSA

During the age of New Imperialism (c. 1875?1914),

western colonial powers sought to expand their hegemonic

reach over sub-Saharan Africa via large-scale land

surrounding ecosystems. 3 Yet LSLAs have also brought acquisition, resulting in massive exploitation and

employment and increased social services to dispossession of indigenous populations. 4 Although

underdeveloped and underserved populations.

nominal territorial control was restored to SSA countries in

the early 20th century, appropriation of local lands has

In this paper, I will propose two legal reforms designed to

persisted to the present day as land purchases by foreign

minimize the adverse impacts of large-scale land

investors have proliferated. From 2000?2013 alone, 56.2

acquisition. The first proposed reform calls for the passage

million hectares of SSA farmland (equivalent to roughly ?

of legislation mandating that foreign lessees and host

of Europe?s cultivated land) changed hands

countries engage in a meaningful, informed discourse with

transnationally.

local farmers. The second reform proposes the

The Land Matrix? a public database of

global land acquisitions sponsored by the International

strengthening and expansion of investors? contractual

Land Coalition? defines LSLAs as deals involving more

obligations in conjunction with more robust enforcement

mechanisms. I will first contextualize these reforms within

than 200 hectares of land; 6 nevertheless, most leases in

1. Chiara Mazzocchi et al., ?The Determinants of Large-Scale Land Acquisitions (LSLAs) in Sub-Saharan Africa (SSA): A Case Study,? Agriculture,

vol. 8, no. 12 (December 8, 2018), 2.

2. Laurence Roudart and Marcel Mazoyer, ?Large-Scale Land Acquisitions: A Historical Perspective,? Revue Internationale De Politique De

Développement, vol. 6, no. 1 (2015).

3. Paul Hufe and Daniel F. Heuermann, ?The Local Impacts of Large-Scale Land Acquisitions: A Review of Case Study Evidence from Sub-Saharan

Africa,? Journal of Contemporary African Studies, vol. 35, no. 2 (April 2017).

4. Roudart and Mazoyer.

5. Ward Anseeuw, et al., ?Transnational Land Deals for Agriculture in the Global South,? Land Matrix (April 2012), 7.

6. The Land Matrix. International Land Coalition (ILC), Centre de Coopération Internationale en Recherche Agronomique pour le Développement

(CIRAD), Centre for Development and Environment (CDE), German Institute of Global and Area Studies (GIGA) and Deutsche Gesellschaft für

Internationale Zusammenarbeit (GIZ), (November 1, 2020).


21


SSA span tens of thousands of hectares (e.g., the median century? nearly 90 percent of rural farmland in SSA

landholding in Liberia is upwards of 50,000 ha). 7 The land remains unregistered. Lack of registration means the land

is primarily used to cultivate flex crops? mostly is vulnerable to government seizure and subsequent land

sugarcane, oil palm, soybean, maize, and jatropha used for acquisition by foreign investors. 12 Government officials, in

food, feed, or to make biofuel? and for wood and fibre some instances as a matter of official development policy

production. 8 The majority of the acquired land is leased for and in others due to corruption and payoffs, are often at

up to 99 years. 9 The Land Matrix reports that there are odds with local communities. In unusual instances, state

currently 655 active deals (>200 ha), both concluded and representatives may coordinate foreign land deals with

intended, that are being pursued by investors in Africa; local leaders in order to negotiate processes of regional

however, this statistic is likely an underestimate as many land administration, as is often the case in Madagascar. 13

deals are not officially documented. 10

Due in part to such ?overlapping jurisdictions,? land deals

tend to have ?little coordination, and low negotiation

Over the last few years, SSA land acquisitions have grown

capacity;?

increasingly complex, presenting a wide array of

14 therefore, contracts can often be littered with

cartographic inconsistencies, and may include

ownership and financial configurations. The land deals are

?stabilization clauses,? which effectively prevent host

usually made between foreign investors? ranging from

countries from altering investors?prearranged regulations

agribusiness companies to sovereign wealth funds from the

(e.g. environmental protections and worker compensation).

United States, China, Britain, Singapore, and Saudi

Arabia 11 Much of this disorganization and asymmetric negotiation

? and domestic state actors. Note, however, that

capacity is by design? investors seek out states with

LSLAs should not be understood merely as capitulations

?weak tenure security and governance [of their land

of ?the state? to foreign entities; rather, the state actor must

sectors]?? among them the Democratic Republic of the

be viewed as a multifarious, active body, composed of

Congo (DRC), Sudan, Madagascar, and Ethiopia.

diverse actors and incentives. Because a substantial

15

Ultimately, structural deficiencies and corruption in host

majority of SSA countries have maintained outdated

countries allow land operators to more effectively establish

systems of land governance? including surveying and

property rights and extend control over their assets.

mapping methods that date back to the mid-20th

7. Klaus W. Deininger and Derek Byerlee, Rising Global Interest In Farmland: Can it Yield Sustainable and Equitable Benefits? (2011), 62.

8. Caterina Conigliani, et al., ?Large-Scale Land Investments and Forests in Africa,? Land Use Policy, vol. 75 (June 2018), 3.

9. Donald L. Sparks, ?Large Scale Land Acquisitions In Sub-Saharan Africa: The New Scramble?? International Business & Economics Research

Journal, vol. 11, no. 6 (June 2012), 689.

10. The Land Matrix. International Land Coalition (ILC).

11. Mazzocchi et al., ?The Determinants of Large-Scale Land Acquisitions (LSLAs),? 2.

12. Frank Byamugisha, Securing Africa?s Land for Shared Prosperity: a Program to Scale Up Reforms and Investments, (2013), 104.

13. Wendy Wolford et al., ?Governing Global Land Deals: The Role of the State in the Rush for Land,? Development & Change, vol. 44, no. 2

(March 2013), 192?193.

14. Sparks, 690.

15. Rabah Arezki, et al., ?What Drives the Global ?Land Rush??? World Bank Economic Review, vol. 29, no. 2 (2015), 209.


22


Land Conflicts

meta-analysis of 60 LSLA case studies in SSA, 37

demonstrated positive employment impacts. The authors

In the context of a lack of land tenure security, weak

highlight the example of an Ethiopian castor oil farm

governance, and adverse interests, LSLAs often give rise

investment that contracted 84,000 outgrowers and

to land-centered conflicts and both political and social

generated an additional 5,000 jobs. However, the authors

instability. The majority of land acquisitions fail to provide

acknowledge that the Ethiopian plant, like many other land

Free, Prior, and Informed Consent (FPIC)? a bottom-up

deals in SSA, only produces marginal net gains in

initiative that stresses indigenous peoples?involvement in

employment, as ?hardly any of these investments [are]

foreign development projects and is formally recognized

by the United Nations as the key to ethical growth. 16 conducted on idle, uncultivated land but [substitute]

As a

previous farming activities.?

result, local communities are often forcibly evicted from

In some cases, as

documented in Zambia, investors may outsource their

their farmland, leading to the collision of ?legal

rights...with informal customs and tradition,? 17 labor, creating vast unemployment within impacted

which can

translate into organized violence. 18 communities.

In one meta-analysis,

Furthermore, whether the job creation is

additive or substitutive, most LSLA-associated

the authors discovered land conflict in 20 percent of their

employment is characterized by highly volatile wages and

reviewed cases, all of which were directly linked to the

temporary contracts due to the speculative nature of land

land deals themselves, including interparty disagreements

and forced dispossession from communal lands. 19 acquisition, coupled with weak worker protection laws. 23

LSLA-induced land conflicts can even have Compensation for land expropriation can vary dramatically

macro-political consequences; for instance, in March of

2009, the government of Madagascar was overthrown

when an undisclosed 1.3 million hectare land deal with a

South Korean conglomerate surfaced. 20

Employment and Land-Use Compensation

Although a handful of LSLA projects provide substantial

job growth and adequate land-use compensation for

dispossessed local smallholder communities, the vast

majority of cases fail to deliver long-term employment

gains and consistent reimbursement schemes. In a

from deal to deal; investors may provide a combination of

lump sum settlements, annual payments, and/or dividends,

which can be distributed in any fashion to local farmers,

households, and/or authorities. In some cases, foreign

lessees may allot alternative tracts of land to displaced

smallholders. Unfortunately, unstandardized payment

mechanisms result in inconsistent and often inadequate

compensation. For example, profit-based dividends can

vary up to 40 percent between projects. Additionally,

investors often fail to accurately gauge a host country?s

inflation rate when calculating annual payments, notably in

16. Yorck Diergarten, ?Indigenous or Out of Scope? Large-Scale Land Acquisitions in Developing Countries, International Human Rights Law and

the Current Deficiencies in Land Rights Protection,? Human Rights Law Review, vol. 19, no. 1 (February 2019), 37?52.

17. Hufe and Heuermann, 179.

18. Sara Balestri and Mario A. Maggioni, ?This Land Is My Land! Large-Scale Land Acquisitions and Conflict Events in Sub-Saharan Africa,?

Defense and Peace Economics, (March 2017).

19. Hufe Heuermann, 179.

20. Venusia Vinciguerra, ?How the Daewoo Attempted Land Acquisition Contributed to Madagascar?s Political Crisis in 2009,? Land Deal Politics

Initiative (April 2011), 10.


22. Laura German, et al., ?Contemporary Processes of Large-Scale Land Acquisition in Sub-Saharan Africa: Legal Deficiency or Elite Capture of the

Rule of Law?? World Development, vol. 48 (August 2013), 12.



23


deals occurring in Sudan. 24 The impact of inadequate staple crops. This increased demand for freshwater can

compensation has gendered dimensions as well; in Ghana, lead to the formation of hotspots and water scarcity for

women farmers are given little or no compensation in local communities. One notable example is Central Africa,

exchange for confiscated land, and are often excluded from where extensive irrigation projects have caused Lake Chad

negotiations with land owners. 25

to shrink by 95 percent since the 1960s. 29

The development of social services and public goods can

be viewed as an alternative form of compensation. These

projects can range from road-building, to constructing or

improving processing facilities, to donating hospitals or

schools. Such promises sometimes materialize, such as in

the DRC, where investors of a rubber plant built a 230-bed

infirmary, 26 but are just as often forgotten, with particular

frequency in Ethiopian land deals. 27

Environmental Impacts

The environmental effects of LSLAs are largely negative,

straining water resources and damaging investment sites

and surrounding ecosystems. Aggressive agricultural

techniques used on leased land such as over-fertilization

and land-clearing can result in marked increases in air

pollution and soil erosion. In addition, farming practices

can disrupt ?indigenous forests that serve as migratory

corridors for endangered species.? 28 Agricultural

production can be sustained via blue water (irrigation) and

green water (precipitation and evapotranspiration). A large

share of LSLA crops, such as jatropha and sugarcane,

require large amounts of blue water, relative to traditional

Food Security

In theory, LSLAs could alleviate food insecurity for

investor and host countries; if all current land deals

manage to close their agricultural yield gaps (the

difference between potential and actual crop production),

the continent of Africa would be able to feed

approximately 50 million additional people relative to the

status quo. Such findings, however, presume lower levels

of biofuel production and nonedible forestry relative to

food production, and that investors will behave in a perfect

and uniform manner. 30 In addition, adverse climate change

impacts (in relation to aforementioned irrigation schemes,

deforestation, etc.) may come at the cost of widespread

cultivation, hindering gains in global food security. 31

Notwithstanding the future implications for improved

global food security, the benefits of foodstuffs harvested

from SSA lands have failed to attenuate local food

insecurities in the present. Despite holding over 60 percent

of the world?s uncultivated arable land, Africa continues to

be a net food importer, and suffers from volatile food

markets. 32 Furthermore, sources of local food insecurity

24. Ibid., 177?179.

25. Benjamin Arthur and Kwame Mensah, ?Assessing Community Consent in Large Scale Land Investments in Ghana,? Civic Response, (2017), 2,

22.

26. Hufe and Heuermann, 177?179.

27. Tsegaye Moreda, ?Large-Scale Land Acquisitions, State Authority and Indigenous Local Communities: Insights from Ethiopia,? Third World

Quarterly, vol. 38, no. 3 (March 2017), 698?716.


29. Emma Li Johansson, et al., ?Green and Blue Water Demand from Large-Scale Land Acquisitions in Africa,? Proceedings of the National

Academy of Sciences of the United States of America, vol. 113, no. 41 (2016).

30. Maria Cristina Rulli and Paolo D?Odorico. ?Food Appropriation through Large Scale Land Acquisitions,? Environmental Research Letters, vol.

9, no. 6 (June 26, 2014).

31. Liette Connolly-Boutin and Barry Smit., ?Climate Change, Food Security, and Livelihoods in Sub-Saharan Africa,? Regional Environmental

Change, vol. 16, no. 2 (February 13, 2015).

32. Wim Plaizier, ?How Africa Can Feed the World,? World Economic Forum, (January 22, 2016).


24


tied with LSLAs can come from poor water regulations, 33

agricultural dumping onto local markets, 34 and weak land

tenure security. 35 In a case study of Sierra Leone, savannah

communities were found to have had stronger food

security prior to coming under LSLA operations. 36 One of

the few food security benefits of foreign land deals comes

rights, regardless of their formal recognition, remain

central to SSA smallholders and agro-pastoralists, as well

as the livelihoods of broader communities. 39 Investors

ought to discuss and integrate traditional elements into the

modern legal context of their land projects in order to

facilitate a more consensual and mutually beneficial

from the intercropping of energy and food partnership. For example, in Mozambique, a handful of

crops? specifically jatropha with maize? letting foreign

investors produce biofuels, while simultaneously allowing

local farmers to harvest traditional food crops. 37

communities initially refused to grant certain acreage

without meaningful consultation, ultimately allowing them

to negotiate preferred payment schemes with investors. 40

Concretizing Consultation Practices

In order to mitigate issues of land conflict, inadequate

land-use compensation, and food insecurity, foreign

investors must be held accountable for consulting local

communities prior to property concessions. Under the

aforementioned normative framework of FPIC, discussion,

negotiation, and inclusion of local communities in land

deals is key to addressing developmental concerns. Indeed,

national and international legal frameworks have

experienced a dramatic shift toward more deliberative

methods of exchange and decision-making since the era of

decolonization. 38 This global movement, however, has

ultimately failed to permeate LSLAs in SSA, as detailed in

the third section of this paper. And yet, customary land

Critics who doubt the efficacy of imposed discourse view

the initiative as merely a perpetuation of the status quo.

They suggest that low levels of legal and political literacy

within rural communities would hinder local populations?

abilities to effectively engage in complex contractual

negotiations. Additionally, they warn that consultations

would be heavily asymmetrical, as local leaders and host

countries in general tend to align themselves with foreign

investors, transforming inclusive dialogues into coercive

monologues. 41 42 Finally, critics point out that even if local

communities manage to secure certain contractual

stipulations, national governments can employ de facto

expropriation given weak land regulations and/or investors

can simply refuse to follow through on any agreed upon

33. Emma Li Johansson, ?Large-Scale Land Acquisitions as a Driver of Socio-Environmental Change: From the Pixel to the Globe,? Lund

University, (2018), 3.

34. Olivier De Schutter, ?How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland,? Journal of Peasant

Studies, vol. 38, no. 2 (March 2011), 272.

35. Hanson Nyantakyi-Frimpong, ?Hungry Farmers: A Political Ecology of Agriculture and Food Security in Northern Ghana,? The University of

Western Ontario, (2014), 155.

36. Genesis Tambang Yengoh and Frederick Ato Armah, ?Effects of Large-Scale Acquisition on Food Insecurity in Sierra Leone,? Sustainability,

vol. 7, no. 7 (July 17, 2015).

37. De Schutter, 262.

38. Juliana Porsani and Rickard Lalander, ?Why Does Deliberative Community Consultation in Large-Scale Land Acquisitions Fail? A Critical

Analysis of Mozambican Experiences,? Iberoamerican Journal of Development Studies, vol. 7, no. 2, 172?173.

39. Ilona Coyle, ?Who Owns Who Owns the Land in Africa? Formal Recognition of Community-Based Land Rights in Sub-Saharan Africa,? Rights

and Resources, (October 2015), 2.

40. Porsani and Lalander, 185.

41. Nilza Matavel et al., ?Lords of the Land: Preliminary Analysis of the Phenomenon of Land Grabbing in Mozambique,? União Nacional De

Camponeses, (March 2011), 31?32.

42. Sonja Vermeulen and Lorenzo Cotula, ?Over the Heads of Local People: Consultation, Consent, and Recompense in Large-Scale Land Deals for

Biofuels Projects in Africa,? The Journal of Peasant Studies, vol. 37, no. 4 (September 23, 2010).


25


concessions to local communities made in negotiations. 43

Expanding and Enforcing Contractual Obligations

In order to address these criticisms, a task force of

third-party community organizers needs to be inserted into

the LSLA consultation process. Organizations like African

Smallholder Farmers Group, which specialize in

promoting local community participation in global

markets, or initiatives like the United Nations?Focus on

Agricultural Cooperatives could supply the

intermediaries. 44 These coordinators would work

one-on-one with local communities, allowing them to

better ?assess the use and value of their resources, to

negotiate sources of income through rents or jobs and to

monitor compliance with agreements.? 45 In this way,

contract-related information gaps would be filled by

experienced mediators, while local communities would

provide culture-specific knowledge and articulate their

interests and concerns. Furthermore, given the extended

duration of certain lease periods, organizers would

continue to advise local communities following the initial

consultation process, ensuring due diligence on the part of

investors, and providing legal options in cases of investor

inaction. Given the prevalence of land conflicts and social

instability in response to negligent land expropriation,

some investors may themselves endorse the use of

mediated conversations as a way to avoid investment

delays and violent confrontations with local populations.

Ultimately, while this approach may not level the playing

field between farmers, investors, and state representatives,

it will give local communities a seat at the table.

In order to more effectively level the playing field, SSA

governments must take a stricter and more selective

approach to investment projects. Over the last few years,

African government officials have been eager to sell off

large tracts of land to foreign investors with little

consideration for local populations. 46 In order to combat

the negative impacts of these deals, the African Union

ought to pass and enforce a binding legislative act which

universally defines the basic terms of land deals.

Requirements should include fixed ratios of edible to

nonedible crops, capped water usage, efficient irrigation

schemes, and employment for displaced smallholders at a

set minimum wage. 47

Critics of strict agricultural legislation warn that investors

will simply pivot toward less regulated markets, such as

Asia and Latin America. 48 They claim that such a pivot

would be easy, given the significant crop overlap between

Asian, Latin American, and African agricultural

production. 49 The ensuing capital flight would only

exacerbate present harms, and the decreased revenue

would coincide with increased budgetary demands for law

enforcement needed to enforce the requirements and

monitor compliance.

These arguments are misguided. First, they assume that

arable land is abundant; this premise, however, fails to

reflect current and future economic realities. Analysts warn

that the global agricultural sector, already failing to fully

meet food demand, will be further unable to cope in the

coming years. Thus, uncultivated, arable land will? as it

43. Kerstin Nolte and Lieske Voget-Kleschin, ?Consultation in Large-Scale Land Acquisitions: An Evaluation of Three Cases in Mali,? World

Development, vol. 64 (December 2014), 661.

44. ?Supporting Smallholder Farmers in Africa: A Framework for an Enabling Environment,? African Smallholder Farmers Group (July 2013), 2.

45. Porsani and Lalander, 186.

46. Liz Alden Wily, ?How African Governments Allow Farmers to Be Pushed off Their Land,? The Guardian (March 2, 2012).

47. Johansson, ?Large-Scale Land Acquisitions,? 43.

48. Cecilie Friis and Jonas Østergaard Nielsen. ?Small-Scale Land Acquisitions, Large-Scale Implications: Exploring the Case of Chinese Banana

Investments in Northern Laos,? Land Use Policy, vol. 57 (November 2016).

49. ?The State of Food and Agriculture in Asia and the Pacific region,? Food and Agriculture Organization.


26


already has? become an increasingly valuable and rare Conclusion

commodity. 50 Therefore, the likelihood of a significant

Together, strengthening consultation practices prior to

pivot away from SSA is low, as the finite amount of

finalizing lease agreements and creating a mechanism to

available agricultural land will only become scarcer in the

subsequently enforce contractual obligations provides a

coming years. Investors?options are further constrained by

path toward a more equitable and less destructive paradigm

existing regulations in alternative markets, such as in

for pursuing land deals in sub-Saharan Africa. Though it is

Thailand, where strict land administration impedes

beyond the scope of this paper to conclusively weigh the

large-scale acquisitions, leaving 95 percent of landholdings

costs and benefits of LSLAs as they occur in this region,

to local smallholders. 51 Secondly, critics assume that

the foregoing analysis indicates core defects in the practice

agricultural projects can be easily relocated. However,

as it now exists. Without reforms, it is inevitable that

investors face hefty fixed costs in the form of land rent,

corruption, antiquated systems for land registration,

equipment, and labor. To relocate a project overseas would

discordant local and state practices, overlapping

only interrupt a large-scale plant?s economies of scale, and

jurisdictions, and foreign lessees who act with impunity

would present investors with an entirely new set of fixed

will continue to hamper ethical development which both

costs. Ultimately, even if SSA forfeits some investments in

generates capital for investors and uplifts local

the short term, the long-term benefits of sustainable

communities. Only by filling the legal vacuum can the

community development, even with the cost of

rights of all stakeholders in large-scale land acquisitions in

enforcement, would likely outweigh the losses.

sub-Saharan Africa be guaranteed.

50. Elferink, Maarten, and Florian Schierhorn. ?Global Demand for Food Is Rising. Can We Meet It?? Harvard Business Review, (April 7, 2016).

51. Marcus Colchester, et al., ?Agribusiness Large-Scale Land Acquisitions and Human Rights in Southeast Asia,? Forest Peoples Programme,

(August 2013), 1?155.


27

CHILE?S CONSTITUTIONAL

RENEWAL: A LESSON TO BE

LEARNED?

Marina Hunt

ABSTRACT

This article discusses the relationship between Chile?s current crisis of representation and the majoritarian rules ingrained

in Pinochet?s 1980 constitution. Chileans voted in October 2020 to replace this constitution. It had become increasingly

regarded as morally illegitimate for its roots in the dictatorship and structurally flawed for hindering the democratic

process by which the will of Chileans translated into policy. This article argues that a new Chilean constitution approved

in a plebiscite may be the best way to address the country?s crisis of representation and allow it to return to a tradition of

political pluralism.


28

When Chile re-entered democracy in 1990, it was within

the framework of General Augusto Pinochet?s 1980

constitution. This document guided Chile through 30 years

of relative economic and social stability, but protests

calling for institutional reform have seen the emergence of

a constitutional moment among Chilean citizens. These

demands culminated in an October 2020 referendum in

which 78.12 percent of voters opted for a new constitution

to be drafted by a board of elected representatives. 1 The

legitimacy of the 1980 document was challenged by many

for its origins with the dictatorship. Beyond the moral

illegitimacy of the constitution, however, lies a deeper,

more structural problem. The majoritarian rules written

into the text of the 1980 constitution limit the potential for

constitutional reform by granting veto powers to a

minority of right-wing legislators, making it difficult to

extend the social, economic, cultural, and collective rights

that many Chileans have demanded. The constitution is

thus at the epicenter of Chile?s crisis of representation,

denying Chileans a fully democratic process by which

their will can be translated into government policies. While

a new constitution carries the potential of new problems of

legitimacy, the Chilean example illuminates how a

constitution ingrained with majoritarian rules may form an

insuperable barrier to truly representative democracy.

This paper will begin with an overview of Chile?s recent

constitutional history. The second section looks in more

detail at criticisms Chilean citizens have raised over the

1980 document and discusses the ways in which the

majoritarian rules and neoliberal principles written into the

1980 constitution inhibit the possibility of policy reform to

the satisfaction of Chilean citizens. The third section

Chile?s Constitutional Renewal: A Lesson to be Learned?

considers the potential challenges introduced by an entirely

new constitution. In examining these factors, this paper

will conclude that constitutional renewal is necessary in

the Chilean case and should be considered in states

experiencing similar crises of representation.

A Brief History of Pinochet?s 1980 Constitution

On September 11, 1973, the heads of the Chilean Army,

Navy, Air Force, and national police formed a military

junta and led a coup to overthrow Chile?s

democratically-elected president, Salvadore Allende. 2

Days after the coup, the junta appointed a commission to

begin crafting a new constitution that would legitimize

military rule through a series of ?transitional? articles to be

applied during the period of Pinochet?s rule, and

?permanent? articles intended to create a long-term

?protected? democracy. 3 The permanent articles

established an ongoing tutelary role for the military,

placed restrictions on basic democratic and human rights

to a degree that would ?inhibit effective political

participation,? established checks on the democratic

principles of separation of powers and popular sovereignty,

and installed barriers to constitutional reform intended to

ensure the permanence of the principles of the military?s

revolution. 4 This ?protected? formulation of democracy

gave the executive the power to ?dissolve the lower house

of the national Congress and assume sweeping emergency

powers,? and formed a system that privileged the voices of

experts. 5 In all, the constitution established a foundation

for political institutions that are rhetorically cloaked in

democratic principles but that are authoritarian at their

core.

1. ?Celebrations in Chile as Voters Back Rewriting Constitution,? Al Jazeera, October 26, 2020, https://www.aljazeera.com/news/2020/10/26/

celebrations-in-chile-as-voters-back-rewriting-constitution.

2. "Constitutional History of Chile," ConstitutionNet, International IDEA, accessed November 10, 2020, http://constitutionnet.org/country/

constitutional-history-chile.

3. Ibid.

4. Mark Ensalaco, "In with the New, Out with the Old? The Democratizing Impact of Constitutional Reform in Chile," Journal of Latin American

Studies 26, no. 2 (1994): 413.

5. Ibid., 411.

6. Ibid., 410.


29

The center-left Concertación coalition, which formed in

opposition to the military dictatorship, took over Chile?s

government with the 1989 election of Patricio Alywin, and

was willing to accept most of Pinochet?s constitution in

exchange for taking power. 7 Written into the constitution

was an electoral system that initially favored the right and

gave the armed forces the authority to intervene in the

political process by appointing senators. 8 With a

right-wing Senate majority barring major changes to the

status quo established under the dictatorship, the

Concertación achieved only minor constitutional reforms

during its first two terms in power. 9

While the congressional balance of power did not change

during the Concertación?s 20-year hold on presidential

power (1990?2010), a 2005 political agreement under

President Ricardo Lagos produced significant reforms to

the constitution. Notably, the Chamber of Deputies?power

to supervise the executive was increased, the presidential

term of office was reduced from six to four years without

consecutive reelection, appointed senatorial seats were

eliminated, and the constitutional states of exception were

reformed to reduce the executive?s authority to transcend

the rule of law. 10 While these reforms eliminated the most

glaringly anti-democratic facets of the constitution, they

did not do away with the supra-majoritarian mechanisms

that essentially give veto power over the entire political

system to the ideological right, nor did they eliminate the


high quorums for constitutional reform. 11

When socialist politician Michelle Bachelet ran for a

second presidential term in 2013, she promised to replace

Pinochet?s constitution with one ?born in democracy.? 12

Opposition politicians expressed concern over the impact

this move might have on foreign investment and the

economy as a whole. 13 In particular, replacing the 1980

constitution would risk the elimination of its economic

core rooted in neoliberal principles, one of the key reforms

sought by many Chileans.

Upon taking office in 2014, Bachelet faced over one

hundred thousand protesters who called for the

constitutional changes they had been promised, and in

October 2015, the President announced the constituent

process that would guide the country to the possibility of a

new constitution. 14 Chileans set out to advance the

emerging constitutional moment, engaging in

self-convened meetings supported by the

government-appointed and politically diverse Citizen?s

Council to generate recommendations for a new

constitution. These were consolidated into a document

titled ?Citizens?Foundations for a New Constitution.? 15

Using this document as a guide, advisors to the Ministry of

the Secretary of the Presidency worked to draft a new

constitution that would be presented to Congress toward

the end of Bachelet?s presidential term. 16 However,

7.Claudio Fuentes, "Shifting the Status Quo: Constitutional Reforms in Chile," Latin American Politics and Society 57, no. 1 (2015): 99.

8. Ibid.

9. Ibid.

10. Ibid., 100.

11. Claudia Heiss, "Legitimacy Crisis and the Constitutional Problem in Chile: A Legacy of Authoritarianism," Constellations: An International

Journal of Critical and Democratic Theory 24, no. 3 (September 2017): 471.

12. "Constitutional History of Chile."

13. Ibid.

14. Cristóbal Bellolio, "Will the People of Chile Succeed in Rewriting Their 'Dictatorship Constitution'?" The Foundation for Law, Justice, and

Society, July 19, 2016, https://www.fljs.org/content/will-people-chile-succeed-rewriting-their-%E2%80%98dictatorship-constitution%E2%80%99.

15. Alberto Coddou McManus, "All Things Must Pass? The State of the Chilean Constitutional Moment," ConstitutionNet, Institute for Democracy

and Electoral Assistance, March 29, 2018.

16. Ibid.


30

political parties, social activists, and legal scholars,

expecting the opportunity to give input on the draft,

reported not having been invited to contribute during these

meetings. 17 Bachelet delivered the constitutional plan days

before leaving office in 2018, but the document never

made it beyond the committee stage. Bachelet?s

experiment in a bottom-up approach to constitutional

reform ultimately fell apart due to a lack of effort made to

gain support from relevant political actors, such as the

Supreme Court, congressional representatives, and

political parties. 18

A new wave of protests hit Chile beginning in October

2019. With citizens calling for institutional reform and

polls suggesting that 82 percent of Chileans were in favor

of a new national constitution, the current government,

under President Sebastian Piñera, agreed to hold a

referendum on replacing the 1980 constitution. 19 In

November 2019, 10 political parties from the government

and the opposition signed the ?Agreement for Social Peace

and the New Constitution.? 20 Chileans were asked to

answer two questions in a referendum: first, whether they

were in favor of a new constitution, and second, whether it

should be drafted by a mixed constitutional assembly or a

constituent assembly. 21 78 percent of voters opted for a

new Constitution. 79 percent voted for the new document

to be written by a constituent assembly composed entirely

of representatives elected by popular vote as opposed to a

committee that would involve half of the current members

of Congress. 22


How Sound is the Wish for a New Constitution?

The leading charge against the existing Constitution is

symbolic: its origins within the dictatorship render it

illegitimate. 23 The dictatorial context in which the

constitution was born continues to exist in the memories of

many Chileans, for whom this stained document represents

the most potent residue of Chile?s greatest political trauma.

For some, it may even hamper the possibility of fully

reconciling trust and good relations with the government.

Indeed, several Latin American countries, Argentina being

one example, show signs that distrust between a society

and its government cannot heal within a system that has

not made adequate efforts to address and eliminate

institutional sources of pain and distrust. These issues are

not insignificant, both for the healing of Chilean

individuals and the health of Chilean society as a whole.

There are a few problems with this argument, one being

that many of the world?s constitutions, around 20 percent,

were likewise written under undemocratic conditions and

later adapted to systems of democracy. 24 These include the

constitutions of considerably successful democracies. One

example is the United States Constitution, which was

drafted by a group of undemocratically appointed

landowners without input from those whom they

purported to represent, and which was in part focused on

sustaining the institution of slavery. 25 This fact does not

diminish the Chilean predicament, but it does complicate

the viability and pertinence of an argument that cites the

17. Ibid.

18. Ibid.

19. Claudia Zilla and Franziska F.N. Schreiber, "The Constitutional Process in Chile," German Institute for International and Security Affairs, last

modified April 2020, https://www.swp-berlin.org/10.18449/2020C17/.

20. Ibid.

21. Zilla and Schreiber, "The Constitutional."

22. ?Jubilation as Chile Votes to Rewrite Constitution,? BBC, October 26, 2020, https://www.bbc.com/news/world-latin-america-54687090

23. Niall Ferguson and Daniel Lansberg-Rodríguez, The Constitution of Disposability (Santiago: Fundación para el Progreso Chile, 2017), 2.

24. Ferguson and Lansberg-Rodríguez, 2.

25. Ibid.


31

illegitimate origins of the constitution as the premise for its

replacement.

Chilean critiques of the constitution go deeper than its

symbolic baggage and moral illegitimacy, and include

more substantive reasons for needing a new constitution.

One such critique is that the 1980 constitutional text limits

the government?s ability to increase spending on welfare

and social programs. 26 Pinochet?s regime did not only

implement neoliberal economic policies during its time in

power, but also wrote into the constitution an emphasis on

property rights and constraints on state interference.

Article 19, for example, guarantees private property rights

and incorporates measures that deny the state?s ability to

infringe on those rights. 27 Article 67 requires Congress to

indicate the allocation and amount of a new expenditure,

and any expenditures that exceed projections require that

Congress ?proportionately reduce all expenditures,

regardless of their nature.? 28 This limits the ability of the

Chilean government to enact the kinds of social policies

sought by the many Chileans who are adversely affected

by an inequitable distribution of wealth and power. 29 This

is one way in which the 1980 constitution hinders the

Chilean government from meeting the demands of the

Chilean people and truly representing the kinds of policies

they seek.

A related problem is that the rules set out for a

constitutional amendment require very high quorums

within Congress to approve constitutional reforms, making

it difficult to achieve changes to the existing document.


The force of the military dictatorship facilitated the

implementation of a status quo that could never have

otherwise been achieved, allowing for a ?polarizing

right-wing veto against democratic decision making? to

control the political system. 30 Owing to its permanent high

quorum provisions and supra-majoritarian mechanisms

ensuring the supremacy of the Chilean right wing, the

constitution denies ?the democratic process by which the

will of the people translates into law and public policy, the

basic feature of democracy.? 31

This puts the constitution at the root of many Chileans?

persisting dissatisfaction with institutions, politics, and

representatives. 32 Chile?s current crisis of representation

and the related public discontent with

difficult-to-dismantle neoliberal conventions are thus

closely linked to the constitution. While laws have

gradually progressed to reconcile social views and

legislation with regard to issues of social, ethnic, and

human rights, the 1980 constitution will perpetually deny

key components of a proper democratic process. 33

The Challenges of Constitutional Renewal

Constitutional replacement will not necessarily resolve the

legitimacy problem of the current document. New

constitutions lack the power of procedural precedent and

institutional norms, rendering younger constitutions

inherently less legitimate than older ones. 34 This creates

the paradoxical possibility that in replacing the 1980

constitution to address its problem of illegitimacy, a new

such problem is created. Venezuela, where 26

26. Bellolio, "Will the People.?

27. Andrew Berryhill, "Constitutional Restraints and Economic Stability: Explaining Chile's Economic Development since 1990," Collegiate

Scholars Program Thesis (CSP 401-402), 2019, 19.

28. Ibid., 13.

29. Bellolio, "Will the People.?

30. Heiss, 475.

31. Ibid., 471.

32. Ibid., 470.

33. Ibid., 471.

34. Ibid., 24.


32

constitutional replacements have been implemented, often

around the will of the president, illustrates this danger. 35

The recent Constitution of 1999, written by Hugo Chávez,

followed this trend and created a government overly reliant

on the executive and institutionally weak. 36 When Vice

President Nicolás Maduro was asked to serve in Chávez?s

sudden absence in 2012, ?Venezuelan institutions were

particularly ill-equipped? to manage this turnover. Despite

its ?careful stipulations regarding presidential succession,?

the young constitution?s lack of precedent allowed the

Venezuelan Supreme Court to interpret the constitutional

text loosely and endorse the continuation of the regime

under Maduro despite widespread popular protests against

it. 37

The present situation in Chile is different in that the

impetus for a new constitution lies not with the executive

but with the people. Still, constitutional replacement will

not be the end-all solution to strengthening Chilean

democracy and restoring citizens? faith in government

institutions. Eliminating the constitutional barrier to reform

will merely open the way for elected officials to implement

policies that better reflect the will of the majority of

Chileans.

A new constitution has the potential to address the

legitimacy issue of the 1980 document, but its success will

depend upon the degree to which Chile?s political system,

with its long held supra-majoritarian norms, can tolerate

substantive popular participation and the inclusion of a

diversity of political opinions. Without these two

ingredients, it is unlikely that a new constitutional text will

address what the Chilean people perceive as shortcomings

in the values and structure of the existing one.

The 2020 Chilean national plebiscite on the issue of

constitutional renewal was a step in the right direction for

the health of Chile?s institutional legitimacy. The


participation of civil society in the process may help evade

the Venezuelan problem of a constitution built heavily

around the will of the executive, but it should not be taken

for granted that the symbolic act of constitutional renewal

will translate into the kind of lasting structural political

change many Chileans expect will emerge from the new

draft.

Conclusion

The 1980 constitution, both the subject of the process and

its limiting force, continues to hinder the possibility of a

fully functioning and democratic political system. Within

this framework, the legitimacy argument is not limited to

the origins of the constitution. Chile?s great constitutional

conundrum has been that the framework of the current

constitution limits the prospects for its own reform, while a

new constitution? even one able to resolve the legitimacy

issue of its predecessor? carries the potential to produce

new problems of illegitimacy. At a moment when citizens

across the globe have increasingly shown distrust and

dissatisfaction with their elected officials and government

institutions at large, it is worth considering the link

between constitutional texts and the politics of

representation. The Chilean situation illustrates this link

and shows how a new constitution approved in a plebiscite

and drafted by directly elected representatives might evade

the potential challenges of constitutional renewal visible in

the Venezuelan and other Latin American cases. 38 A new

constitution will not be the end-all solution to Chilean

disillusionment with government institutions, nor will it

necessarily extend the economic and social rights Chileans

have called for. However, it may well be needed to

overcome the supra-majoritarian norms enshrined in the

existing document in order to address Chile?s crisis of

legitimacy and representation.

35. Ibid., 40.

36. Ibid., 38.

37. Ibid., 40.

38. Zilla and Schreiber, ?The Constitutional.?


33

THE ZENGER JURY: A MECHANISM

OF LEGITIMIZING POPULAR

DISSENT

Jordan Kei-Rahn

ABSTRACT

The present text explores the act of jury nullification during the seminal American libel case Crown v. John Peter Zenger.

This 1735 trial involved a printer?s publication of grievances against a royal colonial governor, William Cosby. The

decision in this trial reshaped libel law which previously did not differentiate between veritable or false claims, thereby

allowing for open critique of government officials. In order to understand the significance of the Zenger jury?s

nullification, this text will discuss the evolution of libel laws, from those of the Salian Franks to the more applicable

English concept of scandalum magnatum, establishing that such later constructs existed to preserve social stratification

and elite superiority. Systems of jury instructions, which limit a jury?s ability to render decisions based on their

interpretation of the merits of a particular law, served to preserve socioeconomic hierarchies. Therefore, the Zenger jury?s

decision to acquit the accused libeler reflects the general populous?s desire to prevent elite condemnation of true

criticisms. In establishing this commitment, this text will also show that the jury successfully applied their own

reconceptualization of libel laws, thus beginning the process of incorporating popular sovereignty into the judicial sphere.


34

The Zenger Jury: A Mechanism of Legitimizing Popular Dissent

In the 21st century, most American citizens possess the incorporation of popular sovereignty into judicial

capacity to criticize government officials, business moguls, proceedings. 5

and even religious figures without fear of reprisal.

However, the liberty to openly air one?s grievances is

relatively nascent. Indeed, even into the mid-18th century,

English common law expressly forbade any criticisms that

could potentially damage an individual?s reputation,

allowing for those who felt insulted to sue their critics for

Case Background

In the summer of 1731, Royal Governor William Cosby

arrived in New York City with a questionable track record

of corrupt behavior. Unbeknownst to American colonists at

the time, Cosby had been removed from his previous

seditious libel. 1 2 The former notion of seditious libel

position as governor of Minorca for arbitrarily

disregarded the veracity of individuals?complaints, instead

prioritizing and perpetuating the honor and dignity of

primarily elite citizens or officials. For centuries,

government figures, from lowly customs officers to the

English monarch himself, successfully used this legal

mechanism to avoid accountability to their constituencies. 3

This remained the status quo until August 5, 1735, when a

colonial jury, opposing legal precedent and the explicit

instructions of the presiding judge, acquitted the defendant

in the landmark trial Crown v. John Peter Zenger. Zenger,

an independent printer, had published a letter denouncing

the corrupt behavior of New York?s royal governor,

William Cosby. 4 The jury?s decision created a novel

precedent in libel cases, originally proposed by Zenger?s

attorney, Andrew Hamilton: a truthful, genuine criticism

could not constitute a criminal action. Scholars largely

view this trial as a seminal moment for freedom of the

press. However, such a drastic pivot from traditional case

law represents a broader underlying significance: the

expropriating the cargo of Spanish merchants, nearly

leading to an international crisis regarding reciprocal

property rights. Instead of earning the king?s rebuke,

Cosby received a promotion, owing to his connections and

familial ties to British noblemen. 6 However, his actions in

America only showed the persistence of his disreputable

behavior: on his first day in New York, Cosby whipped

and beat his carriage driver for accidentally giving up the

right-of-way. 7 A short way into his tenure, Cosby?s

tendencies toward avarice, nepotism, and abuse led the

public to view him as the ?rogue governor,? a man

ignoring his duties and responsibilities to the colonists. 8

In attempting to exploit the wealth of distinguished New

York Councilman Rip Van Dam, Cosby created his own

political opposition, igniting the proverbial Zenger trial

powder keg. Van Dam served as interim governor before

Cosby arrived; Cosby demanded half of the acting

governor?s salary, arguing that Van Dam had only served

as a proxy for Cosby, and thus did not deserve full

1. Larry Elridge, ?Before Zenger: Truth and Seditious Speech in Colonial America, 1607?1700,? American Journal of Legal History 39, no. 3 (July

1995): 337?339.

2. Seditious libel will be discussed further below. Libel is a defamatory verbal or published comment; seditious conveys that such defamation is

dangerous or damaging to the government or public good.

3. Albert Alschuler and Andrew Deiss, ?A Brief History of the Criminal Jury in the United States,? University of Chicago Law Review 61, no. 3

(1994): 874.

4. Walker Lewis, ?The Right to Complain: The Trial of John Peter Zenger,? American Bar Association Journal 46, no. 1 (1960): 27?29.

5. Although no records exist pertaining to jury deliberations, analysis of Hamilton?s argumentation, in conjunction with contemporaneous events in

political philosophy and American governance, offers insight into the trial?s conclusion. Given this information, Zenger?s acquittal reflected the

jury?s desire to encourage and protect colonial criticism against genuinely abusive British bureaucrats as epitomized by Governor Cosby.

6. Lewis, 27-28.

7. Lincoln Barnett, ?The Case of John Peter Zenger,? American Heritage 23, no. 1 (December 1971): 2.

8. Ibid.


35


payment. To ensure he would win this tort, Cosby created a Libel and the Truth

new court consisting of his own appointees and no jury. 9

British common law primarily adopted libel laws to secure

When Van Dam contested this executive action in the New

the honor and authority of the elite ruling class. European

York Supreme Court, Cosby summarily dismissed the

restrictions against verbal defamation of individuals date

justice, Lewis Morris, who dissented from the majority

back to at least the fifth century CE. During this period, the

opinion and found for the councilman. 10 While Cosby

Salian Franks, who inhabited modern-day France, passed a

technically possessed the authority to make such decisions,

set of laws dealing with ?abusive? terms: ?He who calls

his decrees were ineffably self-serving and violated his

someone else a fox shall be liable to pay 120 denarii.? 13

civic duty to place the interests of the general public over

Similar punishments applied to the words ?pedergest? and

his own private interests. Public knowledge of these

?rabbit.? 14 These prohibitions aimed at preserving the

particular incidents became integral to Zenger?s acquittal.

community as well as the reputation of the defamed

In fact, the Cosby?Van Dam affair directly led to the

individual. The law explicitly did not allow an accused

Zenger trial. After his removal, Lewis Morris ran a

libeler to avoid punishment upon proving the truth of their

successful campaign for political office on an anti-Cosby

statement, likely because these insults were vague and

platform. To distribute and legitimize criticisms of Cosby,

subjective, unlike the enumerated grievances in Zenger?s

Morris funded a small printer, John Peter Zenger, turning

letter. Nevertheless, English common law co-opted these

his New York Weekly Journal into a political machine. 11

regulations, but with a novel focus on protecting the

One particularly scathing article caught the royal

nobility and their government rather than the general

governor?s attention. Published anonymously, although

community. English courts focused on a form of libel

popularly attributed to Van Dam?s attorney, the letter

known as scandalum magnatum, literally meaning

declared, ?We see men?s deeds destroyed, judges

?slandering or scandalizing the great men;? authorities

arbitrarily displaced, new courts erected, without consent

often declared this defamation a threat to the foundations

of the legislature . . . by which it seems tryals by juries are

of civil government, and thus ?a Disturbance of the

taken away when a governor pleases . . . Men of known

publick Peace.? 15 16 However, this publicized motive for

estates denied their votes, contrary to the received

scandalum magnatum laws thinly veiled the lawmakers?

practices.? 12 Unable to identify the anonymous author,

attempts to protect their own reputations. Indeed, most

Cosby instead ordered the arrest of the newspaper?s sole

seditious libel trials did not deal with systemic critiques of

publisher and editor, John Zenger, on account of seditious

monarchial government, but rather the behaviors of

libel.

individual officials, such as Governor Cosby?s

9. A tort is typically defined as an act which harms or injures an individual and constitutes a civil, not criminal, wrong. Injured parties can appeal to

courts to impose liability on the offender.

10. Lewis, 28?29.

11. Ibid.

12. John Peter Zenger, The Tryal of John Peter Zenger: of New-York, Printer, Who was Lately Try?d and Acquitted for Printing and Publishing a

Libel Against the Government, (London: printed for J. Wilford, behind the Chapter House, St. Paul?s Church, 1738), 11.

13. Katherine Drew Fischer, The Laws of the Salian Franks (Philadelphia: University of Pennsylvania Press, 1991), 94.

14. Ibid.; Note that the ?abusive term? prostitute could be rendered valid if the accused proved the woman was a prostitute. This is an anomaly,

however, and likely stems from sexist motivations irrelevant to the present discussion.

15. Elridge, 338.

16. Zenger, 1.


36


corruption. 17 Criminalizing libel merely served as a Prior to the jury?s decision in the Zenger trial, a libel?s

mechanism through which to avoid such affronts from inherent truth did not excuse the actions of a defendant;

spreading. Elites differentiated themselves from inferior rather, scandalum magnatum?s motive of preserving elite

company based on their high honor. Besides its inherent rule meant that all criticisms, true or not, constituted

social value, honor allowed elites to rule without fear of threats to the elite?s social superiority. Andrew Hamilton,

lower-class insurrection. The preservation of such virtuous in presenting Zenger?s defense, challenged a long-held

reputations required careful regulation of all public view of defamation: ?Truth makes a libel the more

statements made regarding elites. A famous 17th-century provoking, and therefore the Offense is the greater.? 20

legal theorist, William Hawkins, wrote that aristocratic William Blackstone, a contemporary of Hamilton and

governments must prohibit libel of officials on the basis founder of Blackstone?s Legal Dictionary, confirmed this

that it ?tends to breed a dislike of their Governors.? 18 view of libel, arguing that a breach of peace occurs even

Hawkins thus indicated that the underlying purpose of libel when libel is true and thus a defendant ?is not allowed to

laws was to protect not the security of the entire allege the truth of it by way of justification.? 21 To the

government, but rather the public approval of individuals modern reader, and to Hamilton and the jury, this argument

in positions of power. However, he largely ignored the seems flawed in that it allows the government to pursue

notion that underlying dislike and disrespect for particular any aim without accountability to the people. However, for

officials breeds the libel and not vice versa. Indeed, pre-Zenger monarchists, the connection of the government

judicial systems were less concerned about revealing to the king meant that all criticisms directed toward an

corrupt behavior, usually due to familial or political ties official indirectly showed disdain for or lack of faith in the

with the plaintiff, as was the case with Judge Delancey, a monarch. European monarchs viewed themselves as

Cosby appointee presiding over the Zenger trial. Rather, possessing a divine right to rule, and thus they enjoyed the

advocates of scandalum magnatum focused on containing highest level of honor. 22 Indeed, monarchs drew this divine

the spread of libel and delegitimizing the criticism by protection from criticism straight from the Book of

publicly declaring the libeler an enemy ?of the publick Exodus: ?Thou shalt not revile G-D, nor curse a ruler of

Peace.? 19 Since commoners, especially colonists, held thy people.? 23 This passage supports the concept of lèse

minimal roles in electoral politics and virtually no military majesté, the offense of physically or figuratively injuring

power, imposition of strict libel laws took away these the dignity of the king. 24 In a seminal 1688 libel trial

individuals? only recourse from a corrupt government: involving seven bishops of the Anglican Church, the

their voice.

judge, although acquitting the defendants on a technicality,

held that any statement demeaning of the king constituted

17. Elridge, 343.

18. Zenger, 1.

19. Ibid., 1?2.

20. Ibid., 16.

21. William Blackstone, Commentaries on the Laws of England, In Four Books, vol. 3 ([S.I.]: printed for John Exshaw, Henry Saunders, Boulter

Grierson, James Williams, and John Milliken, 1769), 12.

22. G.A. Kelly, ?Lèse-Majesté to Lèse-Nation: Treason in Eighteenth Century France,? Journal of the History of Ideas 42, no. 2 (1981): 269?273.

23. Exod. 22:18 (JPS Tanakh 1917 ed.).

24. Kelly, 270?272.


37


the most seditious libel possible. 25 In a monarchical

system, this precedent essentially negated the use of a truth

defense as all officials merely served as proxies of the king

and could claim an extension of lèse majesté protection.

Cosby?s prosecuting attorney conveyed this exact logic,

presenting Cosby as ?the King?s immediate representative

here.? 26 It is important to note that British authorities on

occasion permitted circulation of petitions alleging

factually based grievances. However, these same

authorities retained regulatory power over the language,

contents, and general approval of the documents, rendering

them effectively useless. 27 Thus, the limitations on truthful

criticisms imposed via a broad interpretation of lèse

majesté threatened the final bulwark of a royal

government?s accountability to its people.

Hamilton?s argumentation, adopted by the jury, redefined

libel law as a bright-line test surrounding the validity of

the defamation; a conviction for libel now relied on the

presence of falsehood. In effect, merely exposing Cosby?s

abuses did not constitute libel, as damage to the governor?s

reputation resulted from his own actions. Typical libel

defenses involved whether the accused actually said or

published the alleged statement, and whether the statement

was intended as an insult or criticism. 28 Zenger and

Hamilton rejected both paths to acquittal, relying

completely on the insults' validity. 29 This argument

contradicted all known legal precedent, rendering it an

unsupportable plea for the purpose of persuading a judge.

Thus, one may view this move as an appeal to the common

sense of the jury. Hamilton argued that the prosecuting

attorney?s designation of Zenger?s libel as ?false,

malicious, seditious, and scandalous? indicates that the

question of the statement?s truth exists in this case, despite

the recognized law: ?this Word false must have some

meaning, or else how came it here. . . . No, the Falsehood

makes the Scandal.? 30 This argument cleverly manipulates

the prosecution?s definition of libel, differentiating

between qualitative opinions about an individual and

statements of fact, insinuating that the latter do not seek to

demean but rather to illuminate the truth. This represents a

broader restructuring of justice as a means of pursuing

absolute truth, a shift embracing Enlightenment concepts

of rationality and empiricism. Propertied and educated

Americans, the same individuals eligible for jury service,

disproportionately espoused such ideology. Under this

adjusted framework, the jury could acquit Zenger if his

statements merely served to emphasize the realities of

Cosby?s behavior. Blackstone had long hailed juries as the

?best investigators of truth, and surest guardian of public

justice,? (emphasis added); assessing the validity of

Zenger?s accusations tested the jury?s ability to perform

this function. 31 Ironically, Cosby and his appointees?early

attempts to rig the trial inherently legitimized Zenger?s

criticisms that the ?law itself is at an end.? 32 The presiding

court consisted of two Cosby appointees and lacked a third

chair because Cosby could not find another complacent,

subservient judge; Judge Delancey, with Cosby?s hearty

approval, permanently disbarred Zenger?s two original

attorneys for suggesting a potential bias in the court. 33

25. Albert Smith Faught, ?Three Freedoms in the Eighteenth Century and the Effect of the Paper Shot,? University of Pennsylvania Law Review 94,

no. 3 (1946): 318.

26. Zenger, 10.

27. Elridge, 349?350.

28. Frederick Schauer, ?The Role of the People in First Amendment Theory,? California Law Review 74, no. 3 (May 1986): 762.

29. Zenger, 12.

30. Ibid, 15.

31. Blackstone, 214?215.

32. Ibid, 11.

33. Lewis, 30.


38


Furthermore, Cosby, through influencing the court clerk,

unsuccessfully attempted to pack the jury pool with 48

individuals over whom Cosby held coercive pecuniary

influence, including ?The Governor?s Baker, Taylor,

scandalum magnatum, through insinuating that the king

and his proxies are not infallible and remain vulnerable to

the censure of their subjects. Furthermore, as men could

only enter contracts of their own free will, no human-made

Shoemaker, Candlemaker, Joiner, etc.? 34 These law could limit the right to voice genuine grievances; all

proceedings, documented during the trial, in conjunction

with the jury?s apparent knowledge of the Van Dam affair,

clearly establish a pattern of Cosby?s corrupt behavior.

Therefore, the jury?s decision to acquit Zenger reflects a

recognition that Cosby?s actions, not the alleged libel,

damaged the governor?s honor.

Lockean Ideology and Jury Nullification

The jury?s acceptance of Hamilton?s ?truth-defense?

embraced emergent social contract theory?s presumption

that Zenger and other common folk possessed a natural

right to resist the abuses of political superiors such as

Cosby. Social contract theory, most formally established in

Enlightenment philosopher John Locke?s Two Treatises of

Government (1689), postulates that the right to govern

stems from the consent of the governed. Locke argues that

this relationship grants constituents an implicit right to

rebel against governments who unjustly violate this mutual

agreement:

For no man or society of men having a power to

deliver up their preservation, or consequently the

means of it, to the absolute will and arbitrary dominion

of another; whenever anyone shall go about to bring

them into such a slavish condition, they will always

have a right to preserve what they have not a power to

part with; and rid themselves of those who invade this

fundamental sacred, and unalterable law. 35

This argument undermines lèse majesté, and thus

parties require the ability to object to the terms and

subsequent execution of contracts. Indeed, since Cosby?s

authority to create courts, induce prosecutions, and ban

publications existed only to serve the public good, his

co-option of these mechanisms for private benefit rendered

the governor vulnerable to legal public upbraiding. Simply,

Cosby broke his end of the social contract. As men of the

?middle rank,? eligible for service due to property

ownership and/or education, at least some of Zenger?s

jurors would have been familiar with Lockean ideology. 36

However, even if these men lacked knowledge of Locke,

Hamilton?s defense integrated and paralleled social

contract theory, thus exposing the jurors to this ideology.

In addressing Cosby?s behavior, Hamilton declared,

?When a Ruler of a people brings in his personal failings,

but more his Vices into his Administration . . . all the high

things that are said in Fever of Rulers, and of Dignitaries,

and the side of Power shall not be able to stop People?s

Mouths from flowing when they feel themselves

oppressed.? 37 One must not ignore the fact that the jurors,

?summoned out of the neighborhood where the fact is

alleged to be committed,? were of similar stature as Zenger

and Hamilton. Thus, Cosby?s abuses, especially those

concerning property rights, affected the twelve men

directly. 38 Furthermore, many jurors were of Dutch

ancestry and potentially held animosity toward British

rulers, lingering from the seizure of New York, a formerly

Dutch colony. 39 Therefore, the jury?s acquittal of Zenger

34. Zenger, 9.

35. John Locke, Two Treatises of Government (London: Aunsham Churchill, Black Swan, Paternoster Row, 1689), Chap. XIII, §149.

36. Stephan Landsman and James F. Holderman, ?The Evolution of the Jury Trial in America,? Litigation 37, no. 1 (2010): 33.

37. Zenger, 20.

38. Ibid, 18.

39. Lewis, 30.


39


may have represented a personal vendetta against Cosby. 40 proper functioning of legal systems. While jury

Nonetheless, the jury possessed a personal interest in

preserving vocal critiques of colonial bureaucracy, a

government in which they had minimal recourse. 41 Indeed,

in a colony lacking adequate political representation,

independent military strength, and the will to denounce its

king, condemning truthful libel eliminated the last and

most accessible form of popular dissent, enabling

bureaucrats such as Cosby to continue exploiting their

subjects. Significantly, the jury?s decision did not

legitimize all criticism; men falsely accusing their

government broke their end of the social contract in failing

to remain submissive and respectful of the public ruler.

Thus, the jury?s embrace of Lockean ideology emphasized

the validity and gravity of Zenger?s grievances while

balancing protection against unwarranted ?Dislike of their

Governors.? 42

instructions imposed a more rational system than mere

emotional responses, the practice severely diminished a

jury?s power. In many libel cases where the main facts of

the libel, publication, and insult were not in question,

juries served only as a formality and litigants often waived

their rights to a jury trial. 44 Hamilton recognized the jury?s

demise, declaring that ?leaving it to the Judgement of the

Court, whether the Words are libelous or not, in Effect

renders Juries useless (to say no worse).? 45 In ignoring

instructions to reach a verdict based on traditional

standards of scandalum magnatum, the jury asserted a right

to assess the validity of legal precedent. As average

citizens, the jury represented the community of New York

City; thus, their act of jury nullification, acquitting Zenger

despite the court?s instructions, represented popular control

of the judicial system. While common folk in Europe long

appealed to the courts as mechanisms of resisting elite

In reshaping libel laws perceived as unjust, the jurors not

control and airing their grievances in a ??semi-public?

only enabled open criticism of government officials, but

forum,? the Zenger jury held the advantage of serving in

also established popular sovereignty within the judicial

an official decision-making capacity.

system. Prior to the Zenger trial, jurors could not base

Lockean ideology

suggests that men, empowered as jurors, hold an obligation

verdicts on their personal interpretations of the law;

to override any law which exists to harm public liberties or

instead, the judge gave a set of instructions regarding

unnecessarily expand bureaucratic power. Furthermore,

which main points the jury should consider. This practice

due to stare decisis, the holding of a jury becomes valid

originated from confusion in cases such as Teukesbury v.

legal precedent. Therefore, Zenger?s acquittal represented

Caleve (1314), in which a judge, restricted from advising

a legitimization of both Hamilton?s truth defense and

the jury on matters of law, told them to ?say what you

feel.? 43 future nullification. Jurors?freedom to deliberate and reach

Clearly, rendering verdicts based on an individual?s

conclusions independent of judicial oversight allowed

emotional response lacked the rationality necessary for the

40. An expansive discussion of Dutch?English tensions remains outside the scope of this paper. Few secondary sources discuss Dutch animosity in

the 18th century; however, Swedish explorer and naturalist Peter Kalen indicated in the mid-1700s that the English disliked the Dutch but the ?Dutch

disliked the Anglo population ten times more.? See: Joyce D. Goodfriend, Benjamin Schmidt, and Annette Stott, Going Dutch: the Dutch Presence

in America, 1609?2009 (Leiden: Brill, 2008): 80?81.

41. Linda S. Myrsiades, ?Grand Juries, Legal Machines and the Common Man Jury,? College Literature 35, no. 3 (Summer 2008): 162?164.

42. Zenger, 1.

43. Peter Meijies Tiersma, ?History of Jury Instructions,? in Speaking of Language and Law: Conversations on the Work of Peter Tiersma (Oxford:

Oxford University Press, 2015), 273?274.

44. Schauer, 762?763.

45. Zenger, 20.

46. Caroline Castiglione, ?Adversarial Literacy: How Peasant Politics Influenced Noble Governing of the Roman Countryside During the Early

Modern Period,? The American Historical Review 109, no. 3 (June 2004): 799.


40


these bodies to interpret laws in ways consistent with the proclaimed: ?The Man who loves his country prefers its

values and needs of their communities. Legal scholar liberty to all other considerations, well knowing that

Frederick Schauer properly concludes that the Zenger trial without liberty, life is a misery.? 50 The Zenger trial finds

?appears as a victory for the jury over the judge, and in a its legacy as an exemplary championing of liberty, a

larger sense a victory for the people as represented by the reminder that no law, no matter how ancient, can suppress

jury over the King as represented by the judge.? 47 The a natural right to dissent.

Zenger trial secured jury nullification as the general

populous?s mechanism of judicial review and legal

innovation. While not possessing legislative authority to

statutorily change libel laws, the Zenger jury demonstrated

that the public?s refusal to enforce legal penalties resulted

in transformed standards of scandalum magnatum.

Conclusion

The Zenger trial restructured notions of popular resistance

against unjust governance, legitimizing both dissent from

corrupt, Cosby-esque leaders, and the laws shielding such

rulers. To accomplish this end, the jury relied on

Hamilton?s argument that truthful, albeit defamatory,

statements do not constitute an actionable offense. The

history of scandalum magnatum demonstrates that

restrictions on the truth served only to preserve the

dominion of aristocratic rule; Hamilton thus appropriately

described libel law as ?a Sword in the Hands of a Wicked

King, and an arrand Coward, to cut down and destroy the

innocent.? 48 While Crown v. John Peter Zenger dulled this

blade, one must not view the jury?s decision as an absolute

protection of popular dissent; American rulers continued to

fall back on claims of scandalum magnatum, most notably

after passage of President John Adams?Alien and Sedition

Acts of 1798. 49 However, the significance of the Zenger

trial rests in the consequent moments when the people,

whether through the press, speech, or a jury verdict,

challenged such encroachments on the right to air one?s

grievances. In his closing arguments, Andrew Hamilton

47. Schauer, 763.

48. Zenger, 20.

49. Alan W. Scheflin, ?Jury Nullification: The Right to Say No,? Southern California Law Review 42, no. 1 (Winter 1972): 176.

50. Zenger, 28.


41

WAS PRIVACY A MISTAKE? AN

EXAMINATION OF PRIVACY,

LIBERTY, AND EQUALITY IN

REPRODUCTIVE FREEDOM

Rakhi Kundra

ABSTRACT

This paper discusses the derivation of reproductive rights in American constitutional law. It specifically

looks at the way in which reproductive rights have been derived from notions of privacy, and eventually

ideas of liberty, in contemporary case law. Ultimately, utilizing the Ginsburg approach, I argue that

reproductive rights should be granted under an equal protection framework. In a revelation of the

ultimate dependency of privacy on liberty as granted in the Due Process Clause of the Fourteenth

Amendment, I will demonstrate how privacy, and freedoms pertaining to abortion and homosexual

intercourse, become positive rights. I will then emphasize the duality between liberty and equal

protection in a discussion of constitutional liberty. As I reveal how the delivery of liberty requires

equality, I will utilize arguments made by Justice Ginsburg to assert that women can only achieve true

liberty and equal status by gaining full freedom over their reproductive decisions.


42

Was Privacy a Mistake? An Examination of Privacy, Liberty, and Equality in Reproductive Freedom

Abortion is largely a moral issue in the United States?

judicial and legislative decisions. While the granting or

abortion and homosexual intercourse specifically become

positive rights. I will then emphasize the duality between

restricting of women?s reproductive freedom is often liberty and equal protection in a discussion of

justified under realms of privacy rights or the compelling

interest of the state, ultimately, conversations regarding

whether or not a woman has the right to make a choice that

will impact the rest of her life are based on conceptions of

morality. This reality was emphasized by Associate Justice

of the Supreme Court of the United States Ruth Bader

Ginsburg when she dissented against the ruling in

Gonzales v. Carhart (2007), which upheld the Partial-Birth

Abortion Ban Act of 2003. Ginsburg wrote, ?Ultimately,

the Court admits that ?moral concerns? are at work,

concerns that could yield prohibitions on any abortion.? 1

Moral arguments arise over the life of the unborn fetus,

and these concerns have been largely assumed by the

federal government and the states in case law pertaining to

reproductive freedom. Reproductive rights have thus been

granted under the realm of privacy? on account of the

Court?s reluctant acceptance of individuals?autonomy over

their private lives? not due to an acknowledgement of a

woman?s right to her body and of the gendered realities

constitutional liberty. As I reveal how the delivery of

liberty requires equality, I will utilize arguments made by

Justice Ginsburg to assert that women can only achieve

true liberty and equal status by gaining full freedom over

their reproductive decisions.

In an examination of the way in which privacy rights are

derived from liberty, and the reliance of liberty on the

achievement of equality, I will argue that privacy is a

mistaken framework for allocating reproductive rights. I

will show that equal protection requires addressing the

ways in which innate gendered realities place women in a

disadvantaged position in society. Privacy fails in its

supposed embodiment of liberty, as it proves itself to be

unable to meet these standards of equality. Finally, I will

demonstrate that privacy leaves room for the establishment

and perpetuation of a moral argument regarding the life of

the fetus, and that an equal protection framework for

granting reproductive rights prevents the federal and state

government from infringing upon women?s liberty.

that emerge out of pregnancy and raising a child.

Privacy and Liberty

However, I argue that under an equal protection

framework, abortion ceases to exist as a moral argument

and is instead one of liberty, freedom, and equality:

fundamental rights granted to every citizen of the United

States by the Constitution. I will demonstrate the necessity

for an equal protection foundation in granting abortion

rights through a challenge of the existing privacy

framework. Specifically, I will first examine how privacy

rights are derived in cases of reproductive choice and

sexual intercourse. In a revelation of the ultimate

dependency of privacy on liberty as granted in the Due

Process Clause of the Fourteenth Amendment, I will

demonstrate how privacy and freedoms pertaining to

Privacy has been used to grant reproductive rights and

sexual freedom in a number of cases throughout the past

century. While the right to ?privacy? is not specifically

named in the Constitution, it has been deduced from

various amendments through case law. In this section, I

will examine how privacy rights shifted from being

derived from amendments focused on protecting citizens

from invasive governmental interference to those geared

towards granting citizens with freedom and autonomy. I

will show how privacy transitioned from existing as a

negative right to a positive right, derived from liberty.

The right to privacy was first employed as a negative right

1. Gonzales v. Carhart, 550 U.S. 15 (2007).


43


through the granting of reproductive autonomy in

Griswold v. Connecticut (1965). In this case, the Supreme

Court ruled that the Constitution protects the right of

marital privacy against state restrictions on contraception.

In the opinion of the court, Justice William O. Douglas

wrote that ?various guarantees create zones of privacy?

within the Bill of Rights. 2 In the court?s decision, privacy

The right to privacy was first employed as a negative right

through the granting of reproductive autonomy in

Griswold v. Connecticut (1965). In this case, the Supreme

Clause of the Fourteenth Amendment, concurring opinions

written by Justices John Marshall Harlan, Byron White,

and Arthur Goldberg did. Justice Harlan writes,

In my view, the proper constitutional inquiry in this

case is whether this Connecticut statute infringes the

Due Process Clause of the Fourteenth Amendment

because the enactment violates basic values ?implicit

in the concept of ordered liberty?. . . . The Due Process

Clause of the Fourteenth Amendment stands, in my

opinion, on its own bottom. 4

Court ruled that the Constitution protects the right of

marital privacy against state restrictions on contraception.

In the opinion of the court, Justice William O. Douglas

wrote that ?various guarantees create zones of privacy?

within the Bill of Rights. In the court?s decision, privacy

rights were found to exist within the First Amendment?s

provision of the right to association, the Third

Amendment?s prohibition on the quartering of soldiers in

?any house? during peacetime without the consent of the

owner, and the Fourth Amendment?s affirmation of

people?s rights to be secure in their persons, houses,

papers, and effects, and against unreasonable searches and

seizures. Privacy rights were also derived from the Fifth

This opinion reflects the beginning of the court?s

movement towards understanding privacy as a positive

right derived from liberty.

The right to liberty grants individuals the ability to

exercise the provisions enumerated in the Constitution or

available under natural law, while also implying both a

broader sense of individual autonomy from restrictions and

individual empowerment. The establishment of liberty can

be found in both the Fifth and Fourteenth Amendments of

the Constitution. The Fifth Amendment says to the federal

government that no one shall be ?deprived of life, liberty

or property without due process of law,? and the

Amendment?s self-incrimination clause, and within the Fourteenth Amendment extends the obligation of

Ninth Amendment?s provision that ?[t]he enumeration in

the Constitution, of certain rights, shall not be construed to

deny or disparage other retained by the people.? 3 The

court?s official ruling in this case establishes privacy as a

maintaining Due Process to the states. 6 7 In what follows, I

will demonstrate how privacy rights are inherently

intertwined with and derived from liberty as established by

the Fifth Amendment and applied to states by the Due

negative right? a protection against governmental Process Clause of the Fourteenth Amendment in cases of

interference, not one of affirmative entitlement.

reproductive freedom and sexual intercourse.

While the Griswold court did not formally derive privacy

rights from liberty as established in the Due Process

In Roe v. Wade (1973), Planned Parenthood v. Casey

(1992), and Lawrence v. Texas (2003), the right to privacy

2. Griswold v. Connecticut, 381 U.S. 484 (1965).

3. Ibid.

4. Ibid., 381 U.S. 500.

5. ?Liberty Law and Legal Definition,? USLegal, airSlate Legal Forms, Inc., accessed May 7, 2020, https://definitions.uslegal.com/l/liberty/.

6. ?Due Process,? Legal Information Institute, Cornell University Law School, accessed May 7, 2020, https://www.law.cornell.edu/wex/due_process.

7. Ibid.


44


was found to be explicitly derived from the concept of

liberty as granted by the Due Process Clause of the

Fourteenth Amendment. In the court?s opinion in Roe,

Justice Harry Blackmun writes,

The right of privacy, whether it be founded in the

Fourteenth Amendment?s concept of personal liberty

and restrictions upon state action, as we feel it is, or, as

intimate conduct with another person, the conduct can be

but one element in a personal bond that is more enduring.

The liberty protected by the Constitution allows

homosexual persons the right to make this choice.? 10

Justice Kennedy further expands on this notion of liberty

in terms of bodily autonomy, writing, ?The petitioners are

entitled to respect for their private lives. . . . Their right to

the District Court determined, in the Ninth

liberty under the Due Process Clause gives them the full

Amendment?s reservation of rights to the people, is

broad enough to encompass a woman?s decision

whether or not to terminate her pregnancy. 8

right to engage in their conduct without intervention of the

government.? 11 Lawrence is relevant in this analysis

because it embodies further legal derivations of privacy

and liberty in cases of bodily autonomy.

Roe ultimately placed restrictions on a woman?s access to

abortion by granting privacy rights directly to the

physician to perform the procedure, instead of allowing the

woman to make the decision to undergo it. However, the

precedent does mark the advent of an emerging

dependency between privacy, liberty, and women?s

autonomy over reproductive choice. In the Court?s opinion

in Planned Parenthood v. Casey, Justice Sandra Day

O?Connor furthers the emphasis of the derivation of

privacy from a woman?s liberty, writing, ?These matters,

involving the most intimate and personal choices a person

may make in a lifetime, choices central to personal dignity

and autonomy, are central to the liberty protected by the

Fourteenth Amendment.? 9

Finally, in a case outlining the requirement of liberty in the

granting of sexual freedom, Lawrence v. Texas continues to

iterate the role of the Due Process Clause in the derivation

of privacy rights, specifically pertaining to homosexual

intercourse. In the court?s opinion, Justice Anthony

Kennedy writes, ?When sexuality finds overt expression in

Thus, it is clear that over time, the right to privacy has

transitioned to becoming a positive right: one derived from

liberty, one that implies freedom and autonomy. Privacy

rights in Roe, Casey, and Lawrence are reliant on the Due

Process Clause of the Fourteenth Amendment; therefore,

abortion rights and sexual freedom are delivered by liberty

itself.

Liberty and Equality

As I have shown how privacy is clearly intertwined with

liberty, I will now demonstrate how liberty is itself

interlaced with equality, and specifically, the equal

protection of the laws. That is, while privacy is obtained

from liberty in Roe, Casey, and Lawrence, liberty itself is

derived from equality. In his essay, ?Democracy and

Distrust: A Theory of Judicial Review,? John Hart Ely

presents a proceduralist interpretation of the Constitution,

one which focuses on the importance of maintaining equal

participation in a democracy. 12 In the essay, Ely utilizes

this understanding of our country?s laws in order to

8. Roe v. Wade, 410 U.S. 153 (1973).

9. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 851.

10. Lawrence v. Texas, 539 U. S. 567 (2003).

11. Ibid., 539 U. S. 578.

12. Corey Lang Brettschneider, Civil Rights and Liberties: Cases and Readings in Constitutional Law and American Democracy (New York Wolters

Kluwer Law & Business, 2013), 25.


45


underline the connectivity between liberty and equality. He document affirmed that democratic societies must

writes,

protect both negative liberties for citizens to act freely

and positive liberties for all to be treated as equal

Don?t get me wrong: our Constitution has always been

citizens.

substantially concerned with preserving liberty. If it

15

weren?t, it would hardly be worth fighting for. The The Equal Protection Clause states that ?No state shall . . .

question that is relevant to our inquiry here, however, deny to any person within its jurisdiction the equal

is how that concern has been pursued. The principal protection of the laws.? 16 Thus, Brettschneider presents an

answers to that, we have seen, are by a quite extensive understanding of liberty that is reliant on equality; while

set of procedural protections, and by a still more privacy cannot exist without liberty, here, it is argued that

elaborate scheme designed to ensure that in the making liberty cannot exist without a system in which all

of substantive choices the decision process will be individuals are equally protected by the laws.

open to all on something approaching an equal basis,

As Brettschneider outlines throughout his book, Justice

with the decision-makers held to a duty to take into

Ginsburg has made this definition of ?constitutional

account the interests of all those their decisions

liberty? applicable to understanding women?s rights,

effect. 13

especially in the context of reproductive freedom.

Here, Ely argues that liberty can only be achieved, or Ginsburg argued that in order for men and women to have

?pursued,? under a framework of equality. Liberty only equal status, women not only needed to become free of

succeeds when all individuals partaking in the democratic oppressive gendered stereotypes, but that their inherently

system are considered on an equal basis.

unequal realities must be recognized. 17 Ginsburg equates

control over the reproductive freedom of women to blatant

In his upcoming book, Decisions and Dissents of Justice

discrimination on the basis of gender. In her view, natural

Ruth Bader Ginsburg, Professor Corey Brettschneider

female reproductive capabilities automatically place

furthers Ely?s proceduralist interpretation as he describes

women on an unequal playing field compared to men and

the term ?constitutional liberty?: the notion that in order to

thus require the stringent equal protection of the laws. As

achieve true liberty as established by the Constitution, two

qualifications? freedom and equality? must be met. 14 Brettschneider notes, Ginsburg argues that,

Brettschneider argues that the ratification of Equal When women are subjected to disadvantageous

Protection Clause expands the meaning of liberty as treatment? in health care, employment, or other

provided by the Constitution, writing,

fields? simply because they are pregnant, they are

being treated unequally. When women are forced to

Then with the Reconstruction Amendments, especially

bear the burden of childbirth and child rearing, they

the Equal Protection Clause, the Constitution was

are less able than men to freely chart the course of

imbued with a new commitment to equality. Now the

13. Corey Lang Brettschneider, Decisions and Dissents of Justice Ruth Bader Ginsburg: a Selection (New York: Penguin Books, 2020), 41.

14. Ibid., xii.

15. Ibid., xvii.

16. ?14th Amendment,? Legal Information Institute, Cornell University Law School, accessed May 7, 2020,

https://www.law.cornell.edu/constitution/amendmentxiv.

17. Brettschneider, Decisions and Dissents, xxiv.


46


of their own lives. 18

Here, Ginsburg not only reiterates the fact that pregnancy

Ultimately, Ginsburg emphasizes a proceduralist

is a condition specific to women that places them at a

understanding of liberty in cases of reproductive freedom:

one where liberty is only successful when men and women

disadvantaged position in society, but she also explicitly

addresses the discriminatory nature of reproductive

have equal opportunities? equal citizenship,

regulations. Reproductive constraints violate the Equal

essentially? in society.

Protection Clause of the Fourteenth Amendment because

they not only disregard the burden women bear during and

Ginsburg most clearly articulates her viewpoint that

abortion rights should be centered around granting women

the same opportunities and status as men? grounded in the

after pregnancy, but they clearly draw unjust distinctions

on the basis of gender, as the regulations are only

applicable to women. Thus, women can only fully achieve

Fourteenth Amendment?s Due Process and Equal

the liberty that is granted to them via the Due Process

Protection Clauses? in her brief written in response to

Struck v. Secretary Defense (1971). At the time, Ginsburg

was not yet on the Supreme Court but represented the

Clause of the Fourteenth Amendment when their

reproductive rights are considered with the concern of

ensuring their equality.

plaintiff. In this case, Susan Struck, a Captain in the United

States Air Force, challenged an Air Force Regulation

which mandated discharge action upon determination that

a female officer was pregnant. 19 While the Air Force

changed its regulations before the case was heard, allowing

Struck to have her child and remain in service, Ginsburg

used it as an opportunity to publicly raise the issue of

gendered inequities that arise from female reproductive

capabilities, under an equal protection and liberty

framework. 20 She writes,

The trend of judicial opinion is clear: regulations

applicable to pregnancy more onerous than regulations

applicable to other temporary physical conditions

discriminate invidiously on the basis of sex. . . .

Because pregnancy, though unique to women, is like

other medical conditions, the failure to treat it as such

amounts to discrimination which is without rational

basis, and therefore is violative of the equal protection

clause of the Fourteenth Amendment. 21

Ginsburg further outlines the need for the utilization of an

equal protection framework in providing reproductive

freedom to women in her dissent in Gonzales v Carhart

(2007). In this case, the Supreme Court ruled that

Congress?s Partial-Birth Abortion Ban Act was not

unconstitutional and did not pose an undue burden on the

right to obtain an abortion. In response to this ruling,

Ginsburg, now an Associate Justice on the Court, wrote,

As Casey comprehended, at stake in cases challenging

abortion restrictions is a woman?s ?control over her

[own] destiny.? . . . Thus, legal challenges to undue

restrictions on abortion procedures do not seek to

vindicate some generalized notion of privacy, they

center on a woman?s autonomy to determine her life?s

course, and thus to enjoy equal citizenship stature. 22

Here, Ginsburg draws clear parallels between Ely?s

proceduralist interpretation of the Constitution and

requirements for equal citizenship in a democracy and

18. Ibid., xxix.

19. Ibid., 46.

20. Jonathan Bullington, ?Justice Ginsburg: Roe v. Wade not ?women-centered,?? Chicago Tribune, May 11, 2013,

https://www.chicagotribune.com/news/ct-xpm-2013-05-11-chi-justice-ginsburg-roe-v-wade-not- womancentered-20130511-story.html.

21. Brettschneider, Decisions and Dissents, 48.

22. Gonzales, 550 U.S. 15.


47


female reproductive rights. As Ely argues, liberty can only liberty on the practice of equality, but also fully embracing

be pursued when all citizens in a democracy are considered and legalizing this connection? something Justice

on an equal basis. Ginsburg applies this argument to

reproductive rights as she suggests that women can only

exist as equal citizens when they live in a world where

restrictions are not placed on their ability to receive an

abortion. While Ginsburg ultimately uses notions of

privacy previously established in Roe and Casey as the

Ginsburg could? and arguably should? have advocated

for in her dissent in Carhart. Here, the Court?s ruling

serves as a model that Ely and Ginsburg have strived to

implement: utilizing an equal protection framework to

ensure basic human rights.

Privacy: A Mistake

basis of her argument against the Court?s ruling, it is clear

from her previous work on Struck and in the language of

her dissent that her ultimate belief is that women cannot

achieve true constitutional liberty unless they have

complete equality under the law, which requires the

recognition and granting of reproductive rights under an

equal protection framework. 23

Thus, the utilization of the right to privacy as a vehicle

through which abortion rights are granted is a mistake. It is

a mistake because this process does not acknowledge

reproductive freedom as what it should be: a conversation

surrounding gender inequality and equal protection.

Privacy does not protect or reinforce the equal status of

women; it does not recognize the innate burden women

While not related to women?s reproductive rights, the

constitutional duality between liberty and equality was

affirmed as a vehicle that granted marriage rights under an

equal protection framework in Obergefell v. Hodges

(2015). In this case, the Court held that the Due Process

Clause of the Fourteenth Amendment does not only

guarantee the right to marry as a protected liberty but also

that the Equal Protection Clause mandates that the

preceding analysis be applied to same-sex couples in the

same manner as it does to opposite-sex couples. 24 In the

bear because of their reproductive capabilities, and because

of the institutionalized structure of society that already

places a significant portion of child rearing on mothers.

Privacy instead provides a false notion of liberty, leaving

room for states to infringe upon the freedom of women to

make decisions for themselves. If the right to privacy in

cases of abortion is derived from liberty emphasized in

Roe and Casey, and liberty is intertwined with equal

protection, privacy is a false derivation of liberty if it is

unable to grant equality.

court?s opinion, Justice Anthony Kennedy writes,

In her essay ?On The Distinction Between Sex and

The right of same-sex couples to marry that is part of

the liberty promised by the Fourteenth Amendment is

derived, too, from the Amendment?s guarantee of the

equal protection laws. The Due Process Clause and the

Equal Protection Clause are connected in a profound

way, though they set forth independent principles. 25

This case serves as an example of the Court not only

Gender,? Susan Okin illustrates the limitations of privacy

in establishing equality; she writes of ?false gender

neutrality,? the concept that simply an acknowledgement

of women by shifting language from ?he? to ?he or she,?

or ?persons,? in political theories does not sufficiently

recognize their strife, but instead leads to a notion of false

inclusion. She writes,

acknowledging the reliance between the achievement of

23. Brettschneider. Decisions and Dissents, xxx.

24. Obergefell v. Hodges, 576 U.S. 644 (2017).

25. Ibid., 576 U.S. 663.


48


Their mainly terminological responses to feminist

challenges, in spite of giving a superficial impression

of tolerance and inclusiveness, often strain credulity

and often result in nonsense. They do this in two ways:

by ignoring the irreducible biological differences

between the sexes, and/or by ignoring their different

intersectionality between liberty and equal protection. In

his opinion in Roe, Justice Blackmun acknowledges the

gendered realities that place women at an unequal

disadvantage in terms of pregnancy and raising a child. He

writes, ?Maternity, or additional offspring, may force upon

the woman a distressful life and future. Psychological

assigned social roles and consequent power harm may be imminent. Mental and physical health may

differentials, and the ideologies that have supported

them. 26

Okin argues that the institutionalized gender discrimination

be taxed by childcare.? 27 However, the Court in this case

ultimately ruled that states had a compelling interest to

regulate and protect the rights, and potential life, of the

women battle, combined with inherent biological

unborn fetus. 28 Furthermore, a second flaw with Roe under

disadvantages, demands a greater, more significant

recognition in order for equality to be achieved. I argue

that privacy functions as a type of false gender neutrality.

It is an erroneous acknowledgement of the challenging

implications of pregnancy and raising a child. Similar to

how false gender neutrality fails to fully address gender

imbalances in political theory, privacy touches upon

reproductive rights without appreciating the implications

of the female reproductive experience. Privacy fails to

provide the equal protection that liberty so clearly requires

and fails to empower women to have full reproductive

choice and autonomy over their bodies.

The right to privacy further fails in its guaranteeing of

equality as it leaves room for state governments to infringe

upon women?s liberty to make reproductive choices. This

is most visible in the original court rulings of which the

right to privacy was utilized in granting abortion rights to

women, as well as in allowing homosexual intercourse.

While not influential in the establishment of laws

pertaining to reproductive rights and sexual freedom,

notions of constitutional liberty are addressed in Roe,

Casey, and Lawrence, providing the foundation for the

the equal protection framework is that it grants privacy

rights to perform abortions to physicians, not to the women

who wish to undergo the procedure. This reflects how the

privacy framework disregards equality in status and

opportunity for women.

In Casey, Justice O?Connor also touches upon the

gendered reproductive realities that place women in an

unequal position in society in her conversation of liberty

and abortion rights. She writes, ?That is because the liberty

of the woman is at stake in a sense unique to the human

condition, and so, unique to the law. Her suffering is too

intimate and personal for the State to insist, without more,

upon its own vision of the woman?s role.? 29 In this

opinion, it appears as if Justice O?Connor begins to make

an equal protection argument for the reproductive freedom

of women, as she implies that state regulations on

abortions infringe upon a woman?s ability to achieve equal

opportunity. Yet, in this case, the Court ultimately

reaffirmed, and even strengthened, states? ability to

intervene in the name of protecting the potential life of the

unborn fetus. 30 Instead of continuing the mandate dictated

in Roe that states must establish a compelling interest in

26. Brettschneider, Civil Rights and Liberties, 797.

27. Roe v. Wade, 410 U.S. 153.

28. Ibid., 410 U.S. 113.

29. Planned Parenthood, 505 U.S. 852 (1992).

30. Ibid., 505 U.S. 833 (1992)


49


order to prevent a woman from undergoing an abortion,

Casey loosens this restriction, instituting that state

regulations are valid as long as they do not present an

?undue burden.? 31

Finally, in Lawrence, Justice Kennedy further reiterates the

emerging duality between liberty and equality in instances

of sexual freedom, writing in the Court?s opinion,

?Equality of treatment and the due process right to demand

respect for conduct protected by the substantive guarantee

of liberty are linked in important respects, and a decision

on the latter point advances both interests.? 32 Yet, as with

the ultimate rulings in Roe and Casey, in Lawrence, the

Court yet again only relies on notions of privacy and

liberty in its decision, mirroring its inability to affirm the

reliance between liberty and equality in instances of bodily

autonomy in contemporary case law.

The importance of recognizing Casey?s acknowledgement

of the validity of utilizing an equal protection framework

to grant women reproductive freedom, as well as

Lawrence?s allowing of individuals to engage in whatever

type of sexual intercourse they wish to engage i, is found

in the fact that the reliance of these rulings on a privacy

the language of the Fourteenth Amendment does not hold

to be true. As Justice Blackmun articulates in the Court?s

opinion,

The Constitution does not define ?person? in so many

words. Section 1 of the Fourteenth Amendment

contains three references to ?person.? The first, in

defining ?citizens,? speaks of ?persons born or

naturalized in the United States.? All this, together

with our observation, supra, that throughout the major

portion of the 19th century prevailing legal abortion

practices were far freer than they are today, persuades

us that the word ?person,? as used in the Fourteenth

Amendment, does not include the unborn. 33

When examining the language of the Fourteenth

Amendment, it becomes clear that an unborn fetus is not a

?person? entitled to the same rights and protections of the

laws that living ?persons? are entitled to. Thus, according

to concepts of equal protection as established in the

Constitution, states fail to maintain a compelling interest in

protecting the life of the unborn fetus, as the life, liberty,

and pursuit of happiness of the women who wish to

receive an abortion are of greater constitutional concern.

framework empowers the establishment of state Therefore, the Fourteenth Amendment and its equal

restrictions. That is, the Court?s decision to continuously

grant women abortion rights under the right to privacy has

essentially given states the room to formulate a compelling

interest in the potential life of the unborn fetus and

therefore regulate abortion procedures. Thus, while it is

clear that the Court recognizes the equal protection issue at

protection component simultaneously invalidate any

claims or moral arguments made for the rights of the

unborn fetus, while also establishing the right of women to

seek and demand equal status and true, achievable liberty

by becoming empowered to make their own reproductive

choices.

play in granting women reproductive freedom,

Conclusion

itsresistance to formulating itsruling under a proceduralist

framework allows abortion rights to often lose strength to

moral concerns regarding the life of the terminated fetus.

In demonstrating how the right to privacy in cases of

granting abortion rights is ultimately reliant on the

achievement of liberty, which itself is dependent on the

However, as emphasized in Roe, the claim that a fetus is a

realization of equality, I hope to have revealed the

?person? deserving of equal protection and rights within

31. Ibid.

32. Lawrence, 539 U.S. 575.

33. Roe v. Wade, 410 U.S. 157.


50


fallibility of the privacy framework. The right to privacy in

cases of reproductive freedom is derived from an idea of

morality centered around the life of the unborn fetus, and

from a notion of liberty that it does not fulfill, providing a

façade for the pursuit of an inherently unjust morality.

Privacy rights fail to recognize the burdens women bear

because of their reproductive capacities, and they do not

pay heed to the institutionalized barriers that women face

when they are both pregnant and when they become

mothers. Privacy rights fail to empower women to make

independent decisions regarding their bodies and their

futures in the same way men can; they instead create

further obstacles in the achievement of equal opportunities

and equal status. Privacy rights allow abortion to exist as a

moral argument, leaving room for states to regulate

women?s bodies in efforts to protect an unborn fetus.

Privacy rights insufficiently provide women with the

liberty they are entitled to under the Constitution.

Abortion rights should therefore be granted under an equal

protection framework.

Reproductive health should be considered under concerns

of the livelihood of women themselves, not of the moral

concerns of the judiciary or lawmakers. In order for

women to achieve any type of equality, they need to first

obtain control over their bodies.


51

LYNCH V. DONNELLY: THE

SUPREME COURT'S

UNCONSTITUTIONAL HISTORY

OF FAVORING CHRISTIANITY

Gabriel Merkel

ABSTRACT

The separation of church and state has a long and contentious past in American legal history. The legal basis for this

principle originates from the Establishment Clause of the Constitution's First Amendment, which reads, ?Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise thereof.? Since the First Amendment

was ratified in 1791, there have been many instances in which this principle has been challenged and weakened through

the legal system. This essay will argue that the majority opinion in the 1984 landmark Supreme Court case of Lynch v.

Donnelly? which ruled that the town of Pawtucket, Rhode Island, did not violate U.S. law by purchasing and displaying a

nativity scene on town property? favors Christianity over other religions. While the decision is technically justified by

precedents set in previous cases, This paper argues that the precedent system itself values history and precedent over the

law. While this system has worked to protect the rights afforded by the Constitution in many instances, it is inherently

designed to protect the status quo, not necessarily these rights.


52

Lynch v. Donnelly: the Supreme Court's Unconstitutional History of Favoring Christianity

In the 1984 case of Lynch v. Donnelly, the Supreme Court seasonal excesses.? 2 The Unitarian Church had the same

ruled that the town of Pawtucket?s inclusion of a crèche, or goal as Mather: ?to purge [Christmas] of its associations

a nativity scene, in a public display did not violate the First with seasonal excess and disorder.? 3 To accomplish this

Amendment's Establishment Clause and was, therefore, goal, various churches, including the Unitarians and the

constitutional. The majority opinion in Lynch, written by Universalists, began holding Christmas Day services in the

Chief Justice Burger, cites a number of precedents early 19th century. This effort by the Church to purify

established in prior Supreme Court decisions. Despite Christmas stands as an example of the Church?s effort to

these precedents forming the basis of the majority opinion, shape and control the lives of early Americans with

Burger does not need to justify them because they have religion.

already been ruled on. The example of Lynch v. Donnelly

While the Church used religion to try to contain disorderly

demonstrates that the United States?precedent-based legal

conduct and rowdiness, the colonial governments actually

system can be used to justify unconstitutional actions and

enforced and legislated religious values. In 1780, the state

uphold the U.S. government's inappropriate relationship

of Massachusetts levied a ?religion tax? on all of its

with Christianity. By requiring Supreme Court Justices to

residents, which required them to pay money each year to

base their decisions on prior rulings, some of which were

the church of their choice. 4 5 In many colonies, dancing

made hundreds of years ago, the system runs the risk of

between men and women was banned by the Church

valuing history and precedent over law. 1

(Puritans believed that ?mixed dancing? would inevitably

The history of religion in the Puritan colonies and the lead to fornication), as well as other common practices like

United States is one of Christian supremacy over all other gambling and attending the theatre. 6 The religious basis for

religions. As Stephen Nissenbaum describes in The Battle these early laws laid the groundwork for centuries of

for Christmas, the colonies were predictably governed by entanglement between religion and government.

Christian values. The evolution of Christmas celebration is

Explicit religious influence on law persisted until 1791

a revealing example of this Christian hegemony. In the

when the Bill of Rights to the Constitution was ratified.

1700s, Christmas celebrations consisted of little more than

The First Amendment?s Establishment Clause declares that

excessive eating, drinking, and wassailing. Upset by this

?Congress shall make no law respecting an establishment

sinful behavior, the Church sought to sanctify Christmas to

of religion, or prohibiting the free exercise thereof.? 7

tone down its rowdier traditions. Cotton Mather, a

While exact interpretations of the Establishment Clause

prominent Puritan leader, believed that Christmas

have been heavily contested? Supreme Court cases

celebrations would ?be less obnoxious if the holiday were

invoking the clause have often led to 5-4 splits? there is

celebrated with piety and moderation, purged of its

1. This essay does not make the argument that Burger?s legal arguments are inaccurate. I am instead trying to prove that the system itself is flawed.

2. Stephen Nissenbaum, The Battle for Christmas (New York: Alfred A. Knopf, 1996), 26.

3. Ibid., 46.

4. Ibid., 1.

5. James H. Hutson, Religion and the Founding of the American Republic (Washington, DC: Library of Congress, 1998), https://lccn.loc.gov/

2003557109.

6. Mary Beth Norton, David W. Blight, Beth Bailey, and Carol Sheriff, A People & A Nation: A History of the United States, 10th ed. (United States:

Cengage Learning, 2015), 54.

7. U.S. Const. amend. I.


53


some consensus among constitutional scholars regarding

how the Clause should be interpreted. According to the

National Constitution Center, ?Virtually all jurists agree

that it would violate the Establishment Clause for the

government to. . . extend benefits to some religious entities

and not others without adequate secular justification.? 8

Additionally, the Legal Information Institute at Cornell

Law School writes that the Establishment Clause ?not only

forbids the government from establishing an official

religion, but also prohibits government actions that unduly

favor one religion over another.? 9 It also ?prohibits the

other religions, which is forbidden by the Establishment

Clause. 12 In fact, the practice?s constitutionality was

confirmed in the 1983 landmark Supreme Court case

Marsh v. Chambers, less than one year before the Court

ruled on Lynch v. Donnelly. In the majority opinion in

Marsh v. Chambers, Chief Justice Burger argues that ?the

opening of sessions of legislative and other deliberative

public bodies with prayer is deeply embedded in the

history and tradition of this country. . . [the practice] has

become part of the fabric of our society.? 13 In other words,

things have always been done a certain way, so they will

government from unduly preferring religion over continue to be done in that way. In Lynch v. Donnelly,

non-religion, or non-religion over religion.? 10 The colonial

laws discussed above would obviously be unconstitutional

under the Establishment Clause: the laws favored

Christianity over all other religions and religion over

non-religion. However, despite the clarity expressed in the

Clause, the United States has continued to allow

Christianity to influence government spending and

practices for centuries.

Burger mentions the fact that Congress employs a

Chaplain as an ?example of the accommodation of

religious beliefs intended by the Framers.? 14 Even though

the breakdown of Christian to non-Christian Chaplains

(60-0) clearly shows favoritism of Christianity over other

religions, Burger believes that the centuries of history of

employing a Christian Chaplain somehow justify the

practice.

The continued existence of the position of Chaplain of the

United States House of Representatives provides an

enduring example of this continued entanglement. After

the ratification of the Bill of Rights, Congress continued to

bring in Chaplains to lead daily prayers. This practice is

still in effect today, with Roman Catholic Priest Patrick

Conroy currently serving as Congress?s sixtieth Chaplain.

All sixty Chaplains appointed since 1789 have been

Christian. 11 This practice appears to favor Christianity over

Throughout his majority opinion in Lynch, Burger makes

the argument that history justifies practice again and again.

At one point, he quotes from a prior case to support the

practice of using precedent and history to justify

interpreting the Constitution non-literally. He writes, ?We

have refused ?to construe the Religion Clauses with a

literalness that would undermine the ultimate

constitutional objective as illuminated by history.?" 15 With

the phrase ?illuminated by history,? Burger makes it clear

8. Marci A. Hamilton and Michael McConnell, ?The Establishment Clause,? Interactive Constitution, National Constitution Center,

https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264.

9. ?Establishment Clause,? Legal Information Institute, Cornell Law School, accessed October 20, 2020,

https://www.law.cornell.edu/wex/establishment_clause.

10. Ibid.

11. ?History of the Chaplaincy,? The Office of the Chaplain United States House of Representatives, accessed October 21, 2019,

https://chaplain.house.gov/chaplaincy/history.html.

12. ?Establishment Clause.?

13. Marsh v. Chambers, 463 U.S. 783 (1983).

14. Lynch v. Donnelly, 465 U.S. 668 (1984).

15. Ibid., 465 U.S. 678 (citing Walz v. Tax Comm?n 397 U.S. 664).


54


that he believes that history and tradition can establish and justifiable today. This stance would justify any and all

constitutionality, even if there is language in the past expenditure that violates the Constitution, which is

Constitution that contradicts those practices and traditions. problematic for obvious reasons. Burger?s willingness to

In a document on stare decisis (the legal principle of disregard the money already spent on the crèche

adhering to precedent) provided by the Legal Information exemplifies his habit of allowing history and tradition to

Institute, author Timothy Oyen makes note of this problem justify unconstitutional past actions.

with the precedent system. He writes, ?Critics [of stare

Burger writes that the government-sponsored display of

decisis] argue that the doctrine occasionally permits

the crèche is acceptable because it celebrates a ?holiday

erroneous decisions to continue influencing the law.? 16

recognized by Congress and national tradition.? According

While the Supreme Court relies on stare decisis for

to Burger, ?[T]hese are legitimate secular purposes.? 20

guidance on many of its decisions, past decisions should

With this argument, Burger asserts that the government has

not trump the written word of the Constitution and its

already approved Christmas as a national holiday (in 1870)

amendments.

and that Christmas is a part of U.S. history in claiming that

In his opinion in Lynch, Burger frequently mentions that the crèche is a secular symbol. 21 By this logic, anything

the city of Pawtucket already owns the crèche display and, that has already been approved and is a part of U.S. history

therefore, no additional money is spent on it annually. He is, and always will be, acceptable. It is not difficult to see

writes, ?No expenditures for maintenance of the crèche how this logic is flawed and potentially dangerous.

have been necessary, and, since the city owns the crèche, Japanese internment camps, for example, were approved

now valued at $200, the tangible material it contributes is by an Executive Order in 1942. 22 If the U.S. government

de minimis.? 17 De minimis, in a legal context, refers to operated on the principle that anything that has already

something that is so small that the law will not consider been authorized is legally acceptable, these camps might

it. 18 Burger also mentions that the city bought the display have continued to exist for years after World War II had

for $1,365 in 1973, which amounts to around $8,000 today ended. While the example of internment camps is extreme,

when adjusted for inflation. 19 By Burger?s logic, the city this logic can be applied to any number of past laws, no

already bought the display, so the fact that it owns it is matter how unjust they seem now. It is for this very reason

acceptable. The city spent a particular amount of money on that the Supreme Court has the power to invalidate laws

the crèche in the past? which was almost certainly a that it rules unconstitutional. Rather than ruling on

violation of the Establishment Clause, given that the city Congress? approval of Christmas as a national holiday,

did not spend anything comparable on a display for any which has been challenged in court, Burger chose to accept

other religion? so the expenditure is therefore unimportant the law as doctrine. 23

16. Timothy Oyen, ?Stare decisis,? Legal Information Institute, Cornell Law School, March 2017, https://www.law.cornell.edu/wex/stare_decisis.

17. Lynch, 465 U.S. 669.

18. ?De Minimis,? Legal Information Institute, Cornell Law School, accessed November 23, 2020, https://www.law.cornell.edu/wex/stare_decisis.

19. Lynch, 465 U.S. 671.

20. Ibid., 465 U.S. 669.

21. Ibid., 465 U.S. 676.

22. ?Japanese-American Internment During World War II,? The U.S. National Archives and Records Administration, accessed March 17, 2020,

https://www.archives.gov/education/lessons/japanese-relocation.

23. Ganulin v. United States, 71 F.Supp.2d 824 (D. Ohio 1999).


55


In justifying the inclusion of the crèche in a public display,

Burger also references a number of other examples of

religious symbols and phrases that have made their way

examples of government endorsement of religious

expression seems to us an example of government's failure

to withstand public pressure to give a privileged place to a

into government affairs. Congress and President certain kind of dominant Protestant Christianity rather than

Eisenhower mandated the inclusion of the phrase ?In God

We Trust? on currency, the Pledge of Allegiance includes

the phrase ?One Nation Under God,? and public art

galleries in the United States display Christian paintings

from the 15th and 16th centuries. 24 By allowing the public

display of these religious symbols and phrases, Burger

argues, the government is simply acknowledging ?our

religious heritage? and sponsoring ?graphic manifestations

of that heritage.? 25 Interestingly, Justice Brennan? the

author of the minority opinion? actually agrees with

evidence of the constitutionality of such activity.? 27 In

other words, the Court has sufficiently proven that

Christianity has been favored in the past, but not that it is

constitutional to do so. Additionally, Sullivan argues that

the Court ruled in Lynch?s favor because of public pressure

to protect Christian supremacy. In Sullivan?s view, in a

nation with over 200 million Christians, policies that favor

Christians are likely to be popular. The constitutionality of

these policies, however, is not determined by their

popularity.

Burger that these practices are unobjectionable. In his

Sullivan?s argument that the Court favors Christianity is

dissent, he advocates the view that such practices are

reasonable considering the popularity of Christmas? and

?protected from Establishment Clause scrutiny chiefly

Christianity in general? in the United States, but it is also

because they have lost through rote repetition any

a very serious accusation. The U.S. Constitution designed

significant religious content.? 26 According to both Burger

the judiciary as an independent, nonpolitical body. To

and Brennan, the government?s history of sponsoring

accuse the Court?s Justices of pandering to the people is to

Christian religious expression justifies sponsoring it today.

accuse them of breaking the oath of office, which requires

As discussed earlier, Burger and Brennan are correct that

Justices to act ?impartially? and ?administer justice

Christianity is a part of the history of the United States.

without respect to persons.? 28 This accusation is difficult to

They are misguided, however, in arguing that

prove and this article does not try to do so. The more

Christianity?s history as the dominant religion in the

important point is that the Justices cite and protect

United States justifies the government valuing it above all

precedents favoring Christianity because the system allows

other religions.

them to.

Winnifred Sullivan makes a similar argument about the

This paper has argued argued that the Court illogically uses

Lynch case in Paying the Words Extra: Religious

America?s history as a Christian nation to justify its

Discourse in the Supreme Court of the United States, but

Christian-favoring decisions. Each pro-Christian decision

with an important distinction. She writes that the

the Court makes has far-reaching implications as it sets a

?recitation by the government of the many historical

precedent for future decisions and practices. For evidence

24. Lynch, 465 U.S. 676.

25. Ibid., 465 U.S. 677.

26. Ibid., 465 U.S. 677.

27. Winnifred Fallers Sullivan, Paying the Words Extra: Religious Discourse in the Supreme Court of the United States (Cambridge: Harvard

University Press, 1994), 180.

28. "Oaths of Office," Supreme Court of the United States, accessed October 21, 2019, https://www.supremecourt.gov/about/oath/oathsofoffice.aspx.


56


of this, we need not look further than to Lynch v. Donnelly

itself. The landmark decision of Lynch v. Donnelly

included Justice Sandra Day O?Connor?s Endorsement

Test. This test states that a government action is invalid if

it endorses one religion over another (or religion over

non-religion), but mere support of religion is acceptable.

Over time, this rule has evolved into the so-called

?reindeer rule,? a nickname for the precedent set by Lynch

that ?sufficient secular elements, such as the display of

reindeer next to a crèche, can counterbalance religious

components in a public display.? 29 Basically, a government

display can include a crèche as long as it includes reindeer

or Santa in it, too.

The effect that the Lynch decision has had on the

interpretation and enforcement of separation of church and

state in America is indicative of a larger issue with the

Supreme Court. As a result of this case, explicitly religious

symbols can be sanitized or secularized by the inclusion of

non-religious items. This is absurd. A crèche with a candy

cane and a reindeer in it is still a crèche. This rule does not

seek to prevent governments from setting up religious

displays; it aims to allow them to do so by granting an

exception. The Court and its jurisprudence are currently

designed to protect the status quo, not the rights of the

people.

29. Jesse Covington, "Reindeer Rule," The First Amendment Encyclopedia, Free Speech Center, accessed October 21, 2019, https://www.mtsu.edu/

first-amendment/article/883/reindeer-rule.


57

RUTH BADER GINSBURG: THE

TROJAN HORSE

Silas J. Monje

ABSTRACT

Justice Ruth Bader Ginsburg?s rise to the bench is often overshadowed by her illustrious career on it. Before becoming an

Associate Justice of the Supreme Court, then-Professor Ginsburg spent decades with the American Civil Liberties Union

(ACLU) Women?s Rights Project as an advocate for gender equality and women?s rights. Her time as general counsel for

the Women?s Rights Project was defined by a series of cases she argued before the Supreme Court, all of which sought to

elevate the rights of women by successfully striking down state laws that discriminated on the basis of sex. Professor

Ginsburg and the ACLU?s unique tactic of challenging laws related to gender discrimination under the Equal Protection

Clause of the 14th Amendment helped rewrite the Court?s Equal Protection Clause jurisprudence in the 1970s. As a result,

the effects of Ruth Bader Ginsburg?s career as a litigator are still present in the Court?s jurisprudence. This piece was

adapted from and inspired by the podcast episode ?Sex Appeal? in Radiolab?s series on the Supreme Court entitled More

Perfect. The episode was produced by Julia Longoria ?13.


58


Trojan Horse

/?tr?j?n hôrs/

(noun)

a person or thing intended secretly to undermine or bring

about the downfall of an enemy or opponent.

If one were to pull up a PDF of the United States

Constitution and perform a quick ?control-f? search for the

word ?sex,? one would find that it appears merely once in

the text of the supreme law of the United States. In fact, if

you performed this exercise any time before the passage of

the 19th amendment in 1920 (assuming you had a

computer back then), you would find that it appears with

the same frequency as words such as ?race car? and

?American flag.? That is to say, it does not appear at all.

This oversight, or, more likely, purposeful omittance by the

framers of the constitution, set the nation up for two

hundred and fifty years of legal discrimination against

women that persists to this day. It was once believed, and

still is by some, that this discrimination would be solved

by an amendment to the Constitution explicitly granting

women equal protection under laws, similar to the 14th

Amendment?s protection of former slaves in the wake of

the American Civil War. The Equal Rights Amendment

(ERA), as it came to be called, gained significant traction

in the post-1960s United States. However, various groups

lobbied against it, arguing that passage of the ERA would

threaten traditional gender roles. Almost all proponents of

the ERA agreed with the opposition: the ERA would

threaten traditional gender roles. What the two sides

disagreed on, however, was whether this was a good or bad

thing. Pro-ERA legislators said that its adoption would

open up previously closed doors for women in society.

Those against the ERA said that its adoption would

ultimately hurt women, as it would release men from their

obligation to pay child support and allow women to be

drafted into the army. Both sides contested the ERA in the

mid-1970s, and in the end, it almost passed. In fact, the

ERA was a mere three states away from the thirty-eight

states required for ratification (as per Article V of the

Constitution). By the end of 1977, it was completely

stalled with no new states attempting to ratify it. 1

With no ERA, the feminist movement would have to find a

new path towards equality. The ERA?s failure proved that

this path would not be found through the wide sweeping

change the amendment had proposed. Instead, the path to

equality would be won in the courts, case by case, in a

systematic way. This guerilla war-like strategy would not

be accomplished overnight. It would be slow and

meticulous, achieved by successfully litigating cases

related to gender discrimination on the basis that the laws

in these cases violated the equal protection clause of the

14th Amendment. The cases would be hand-picked by the

recently-founded Women?s Rights Project of the American

Civil Liberties Union (ACLU), and a young ACLU lawyer

named Ruth Bader Ginsburg would spend the next half

century changing the way the American legal system

viewed sexual discrimination and the 14th Amendment.

How did Justice Ginsburg, then Professor Ginsburg, revive

the feminist movement in the wake of the ERA?s failure?

Luckily, there was already an amendment in the

Constitution that could apply to women: the 14th

Amendment. The ERA was supposed to do for women

what the 14th Amendment did for African Americans:

provide equal protection under the law. The 14th

Amendment grants ?all persons born or naturalized in the

United States? freedom from being deprived life, liberty or

property without due process of the law. It also states that

any person in the jurisdiction of the United States is

entitled to equal protection of the laws, meaning laws

cannot be passed that disproportionately affect one

demographic. At face value, the language of the 14th

Amendment appears to protect women from

discrimination, e.g., if a woman is a citizen of the United

States, then laws cannot be passed that disproportionately

affect her and other women, as this kind of law would

violate the Equal Protection Clause of the 14th

1. Leslie Gladstone, "Equal Rights Amendment: State Provisions," (August 23, 2004), Congressional Research Service, 1-6.


59

Amendment. When the 14th Amendment was ratified,

however, it was meant only to be applied to freed slaves.

Thus, in order for the ACLU to challenge laws that

disproportionately affected women on the basis that they

violated the Equal Protection Clause, Professor Ginsburg

and her colleagues at the ACLU had to convince the

Supreme Court that the 14th Amendment could be applied

to cases involving laws related to gender discrimination,

something that had never been done before.

The first step in this process was Reed v. Reed (1971). 2

This case, for which Professor Ginsburg wrote a brief,

established that administrators of estates could not be

named in a way that discriminated by gender, citing this as

a violation of the 14th Amendment. In a unanimous

decision, the all-male Supreme Court ruled, "[t]o give a

mandatory preference to members of either sex over

members of the other, merely to accomplish the

elimination of hearings on the merits, is to make the very

kind of arbitrary legislative choice forbidden by the Equal

Protection Clause of the 14th Amendment. . .[T]he choice

in this context may not lawfully be mandated solely on the

basis of sex.? 3 With this decision in hand, Professor

Ginsburg and the ACLU brought a series of hand-picked

cases to the Supreme Court over the next decade, all of

which challenged the constitutionality of statutes that

discriminated on the basis of sex.

One of the major cases on which Ruth Bader Ginsburg

worked on was Craig v. Boren (1976), 4 which challenged

the constitutionality of an Oklahoma law that prohibited

the sale of "nonintoxicating" 3.2 percent beer to males

under the age of 21 and to females under the age of 18.

Professor Ginsburg and the ACLU took on this case for

one major reason: the appellants argued that the law

discriminated against men. It seems counter intuitive that

the ACLU?s premier women?s rights activist chose to argue

against a statute that gave women more rights than their


male counterparts. The reason for this discrepancy is that

she was most likely being realistic about the goals she

could accomplish given the make-up of the Court.

Ginsburg was a female lawyer in a male dominated field,

and she was arguing for women?s rights in front of an

all-male Supreme Court. Had she chosen to argue a case

that asked for sweeping changes to the way women were

treated by the law, she would have almost certainly lost.

Instead, she chose a law that discriminated on the basis of

sex (it did not really matter which sex it discriminated

against) and was about a relatively uncontroversial issue,

such as the ability to buy nonintoxicating beer at

convenience stores. A win in Craig v. Boren would not

make up for the failure to ratify the ERA, but it would

change the way the law viewed discrimination based on

sex, and in 1971, that is what Ruth Bader Ginsburg

needed. In a 7-2 decision, the Court ruled that the law was

unconstitutional. In the majority opinion, Justice William

Brennan implemented a new standard of review in gender

discrimination cases known as ?intermediate scrutiny.?

The change in how the Court tested the legality of gender

discrimination, originating from Justice Brennan?s opinion

in Craig v. Boren, would have profound effects on the

Court?s jurisprudence in subsequent decades, and

represented a turning point in American Constitutional

Law.

Prior to the decision in Craig v. Boren, the Court utilized a

?rational basis? test to rule on gender discrimination cases.

The rational basis test is a form of judicial review that

determines whether a law is ?rationally? related to a

legitimate state interest. If the law failed the test, it could

be struck down. Oklahoma passed the law prohibiting the

sale of nonintoxicating beer to males under the age of 21

under the presumption that young men were more likely to

be involved in drunk driving accidents and were more apt

to drink in excess; the prevention of both was very much a

2. Reed v. Reed, 404 U.S. 71 (1971).

3. Ibid., 404 U.S. 71, 76-77.

4. Craig v. Boren, 429 U.S. 190 (1976).


60


legitimate interest of the state. In a scenario such as this,

the rational basis review does hold some validity, since the

law is rationally related to protecting Oklahoma?s state

interest. While rational basis review works in such

scenarios, it is easy for one to imagine how the test could

be used inappropriately as a way to legally justify

discrimination against women. For example, if a state

wanted to pass a law saying that women could not work

once they had children at home, the state needed only to

convince the courts that it was in the interest of the state to

have women in the house with their children. If the state

succeeded in convincing the court that this was a

legitimate state interest, the law could be upheld under

rational basis review. The importance of Craig is that it

was the first instance of the court denouncing the use of

the rational basis test in gender discrimination cases, and

instead instituting a stricter test: intermediate scrutiny.

To recognize the importance of adopting intermediate

scrutiny in gender discrimination cases, one must first

understand the premise of ?strict scrutiny.? Strict scrutiny

is the most powerful and stringent test in judicial review,

most commonly utilized in racial discrimination cases

brought against the government. In these cases, judges

strike down discriminatory laws unless the government can

prove three important principles behind the law in

question: (1) that the law is necessary to a ?compelling

state interest?; (2) is ?narrowly tailored? to achieving this

compelling purpose; and (3) uses the ?least restrictive

means? to achieve the purpose. 5 Unless the state can prove

all three of these components, the law in question is

deemed unconstitutional and struck down. The strict

scrutiny test is at the most uncompromising end of the

judicial review spectrum, and when comparing it to

rational basis review, one can easily see how these two

tests vastly differ in stringency.

If rational basis and strict scrutiny are at opposite poles of

the spectrum, then intermediate scrutiny is somewhere in

between. Intermediate scrutiny is similar to strict scrutiny

in that in order for the law in question to stand, it must be

shown to serve a state interest. The difference is that in

intermediate scrutiny, because the state interest has to be

more than merely ?legitimate,? it has to be closer to

?compelling.? Another way that intermediate scrutiny

differs with strict scrutiny is that it does not carry with it

the ?narrowly tailored? and ?least restrictive means?

caveats. Intermediate scrutiny?s status as the middle-man

between rational basis review and strict scrutiny has led to

its utilization in situations where a government passes a

statute that negatively affects a protected class of people in

a way that is not overtly egregious.

In Craig, Professor Ginsburg and the ACLU heavily

advised the plaintiff?s attorney, submitted an amicus brief,

and were present for oral arguments before the Supreme

Court. With Ginsburg?s input, the court came to the

conclusion that the Oklahoma law did not pass the rational

basis review and that going forward the Court would have

to implement a more rigorous test to gender discrimination

cases. Ginsburg?s amicus brief and advisory role in Craig

both helped the court reach the notion that a new test for

discrimination was needed. Justice Brennan?s use of

intermediate scrutiny, influenced by Ginsburg?s amicus

brief, allowed gender discrimination cases to be challenged

on a more strict basis, resulting in a shift in constitutional

law towards the future the ERA had imagined.

Eight years after Craig v. Boren, Professor Ginsburg once

again found herself arguing before the Supreme Court on

behalf of a male petitioner. The petitioner in Duren v.

Missouri (1979) 6 did not aim to overturn a beer law or set

a new form of judicial review. Rather, this case asked a

more important question: did a Missouri state law that

made women exempt from jury duty violate a citizen's

right to a jury of his peers, as granted by the Sixth

Amendment? Billy Duren was convicted of first degree

murder and first degree assault. On appeal, he claimed that

5. Korematsu v. United States, 323 U.S. 214 (1944).

6. Duren v. Missouri, 439 U.S. 357 (1979).


61

his right to a trial by a jury that was ?cross-sectionally

representative of his community? was violated. 7 His claim

was that a Missouri state law that made it incredibly easy

for women to avoid jury duty led to his jury being

exclusively male. The pool of 63 people from which his

jurors were selected only included 5 women. At the time,

women made up 54% of the population in the county, yet

only 26% of people selected from the jury wheel in

criminal cases were women. 8 This obvious discrepancy

between the demographics of the area and the composition

of the jury could be traced back to a state law that

stipulated a variety of ways women could be exempted

from jury selection, including merely not showing up for

jury duty after being summoned. If a man failed to appear

in court after being issued a summoning, the presiding

judge?s bailiff would be instructed to track them down.

However, if a woman committed the same act, the

Missouri state law would consider her actions completely

legal.

Similar to the law in question in Craig, this rule did not

appear harmful to women at face value. In fact, it appeared

to benefit them. However, Professor Ginsburg and the

ACLU convinced the Court that this law not only violated

the defendants rights, but reflected the idea that a woman?s

role in the criminal justice system was less important to

society than a man?s. Professor Ginsburg?s argument in

Duren relied heavily upon the law?s failure to pass the

previously described intermediate scrutiny test. Had the

court been relying on a rational basis review in cases of

gender discrimination in 1979, then the law in question in

Duren might have been allowed to stand, as allowing

women to be exempt from jury duty could rationally be

seen to reduce the burden on busy mothers and

housewives. However, the Court?s previous establishment


of intermediate scrutiny in Craig forced Missouri to prove

they had more than a mere legitimate state interest in

limiting women?s participation in the justice system, which

they failed to do. In an 8-1 decision, the all-male Court

once again ruled in Ginsburg?s favor. 9 Justice Byron R.

White?s majority opinion held that the petitioner's

statistical analysis that compared the makeup of the jury to

the county?s demographics was sufficient enough to prove

that his jury was not cross-sectionally representative of his

community. Justice White?s opinion went on to say, ?if

women, who ?are sufficiently numerous and distinct from

men,? are systematically excluded from venires, the fair

cross-section requirement cannot be satisfied.? 10 Thus the

Court found that Duren?s Sixth Amendment guarantee to a

trial by a jury chosen from a fair cross section of the

community, and his 14th Amendment guarantee to equal

protection of the laws, were violated by the Missouri state

statute.

As strong as Ginsburg?s argument was, the Court was not

entirely convinced. The lone dissenter, then-Associate

Justice William Rehnquist, claimed the Court

inappropriately interpreted the Due Process Clause of the

Sixth Amendment, accusing the Justices of letting their

preoccupation with the equal rights of women distract

them from answering the true question of whether or not

Billy Duren had a fair trial. This distraction from the true

question of the case, he claimed, led to an, ?agile

amalgamation of the Due Process Clause and the Equal

Protection Clause of the 14th Amendment in deciding this

case.? 11 Rehnquist also voiced his concerns about the

Court?s decisions to eliminate, in part, gender-based

classifications for the purpose of jury service, fearing that

it would lead to the elimination of occupation-based

exemptions. This, in Reinquist?s opinion, would lead to

7. Ibid., 439 U.S. 367-370.

8. Ibid., 439 U.S. 357-358.

9. Ibid., 439 U.S. 357.

10. Ibid., 439 U.S. 364 (WHITE, B., majority opinion).

11. Ibid., 439 U.S. 373 (REHNQUIST, J,. dissenting).


62

would lead to doctors and nurses, whom he described as

?virtually irreplaceable in smaller communities? being

forced to, ?join others with skills much less in demand

whiling away their time in jury rooms of countless

courthouses.? 12 Immediately following Ginsburg?s oral

argument, Justice Rehnquist asked her bluntly, ?You won?t

settle for putting Susan B. Anthony on the new dollar,

then?? 13 She decided not to answer. The silence following

Rehnquist?s remark, captured on audio recording, is still

deafening.

The astute reader will recognize a common thread between

these two cases, and many other cases picked up by the

ACLU?s Women?s Rights Project in the 1970s: they were

surprise attacks. The Court, fully expecting to decide on an

issue relating to the constitutional rights of men in both

Craig and Durnen, was instead forced to also consider

gender discrimination more broadly, including how if

affected society as a whole. In this process, the Court

reached new conclusions about how the 14th Amendment

ought to be applied and how gender discriminating laws

must be viewed with the heightened scrutiny. Like

Odysseus and his soldiers, Ruth Bader Ginsburg came into

the Supreme Court disguised as one thing and, when the

moment was right, proceeded with the assault (sans

wooden horse, of course).

Ginsburg?s virtuous struggle for equality continued during

her tenure as a judge on the United States Court of Appeals

for the District of Columbia Circuit and as Associate

Justice on the Supreme Court of the United States. In

United States v. Virginia (1996), Ginsburg authored what

was arguably her most famous opinion; she struck down

the Virginia Military Institute?s male-only admissions

policy on the grounds that it violated the Equal Protection


Clause of the 14th Amendment. 14 In Ledbetter v. Goodyear

(2007), she penned a fierce dissent. 15 In this case, Lilly

Ledbetter sued Goodyear for gender discrimination in

violation of Title VII of the Civil Rights Act of 1964,

alleging that the company had given her a low salary

because of her gender. After the Court ruled that Ledbetter

could not bring her case due to the expiration of the statute

of limitations prescribed in Title VII of the Civil Rights

Act, Ginsburg wrote a scathing dissent. She accused her

colleagues of being tone deaf to the very real issue of wage

discrimination, going as far as to call the opinion ?a

cramped interpretation of Title VII, incompatiable with the

statute?s broad remedial purpose.? 16 In this dissent, Justice

Ginsburg called on Congress to amend the Civil Rights

Act to ?correct this Court?s parsimonious reading of Title

VII.? 17 In 2009, Congress passed the Lilly Ledbetter Fair

Pay Act (the first bill ever signed into law by President

Barack Obama), which amended Title VII of the Civil

Rights Act to extend the statute of limitations on pay

discrimination claims. The act was heavily influenced by

Justice Ginsburg?s dissent in Ledbetter v. Goodyear and

has proven to be yet another step in the direction of

equality for all.

Between all the opinions, dissents, and arguments, Justice

Ginsburg was not afraid to show the world that she was

human. Her time under the nation?s spotlight revealed

many eccentricities, such as her friendship with Justice

Antonin Scalia (the staunch conservative with whom she

seldom voted) or her infamously rigorous workout

routines. While she was similar to any other person in

some regards, very few in history have accomplished as

much as she did. She was the model citizen for an entire

generation of young Americans: passionate, firm in her

12. Ibid., 439 U.S. 378 (REHNQUIST, J., dissenting).

13. Docket No. 77-6067. Argued November 1, 1978.

14. United States v. Virginia, 518 U.S. 515 (1996).

15. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

16. Ibid., 550 U.S. 637 (GINSBURG. J., dissenting).

17. Ibid., 550 U.S. 637 (GINSBURG. J., dissenting).


63

beliefs, and unwavering in the fight for her values. The

impact of her legal influence will reverberate through the

Court?s jurisprudence for generations to come, and much

like Odysseus, her epic effort will not be forgotten.



64

PREFERENTIAL BIAS FOR

PLAINTIFFS IN MEDICAL

NEGLIGENCE LITIGATIONS

Ashwin Palaniappan

ABSTRACT

Benevolence, championed in philosophical frameworks by David Hume and Adam Smith, is a bedrock of society.

However, judicial benevolence, bias toward one party inside courtrooms, is corrosive to the principle of equal protection

under law. Whereas the Rawlsian notion of justice as fairness dictates that courts give equal consideration to the

arguments of both plaintiffs and defendants, judicial benevolence tilts the scale in favor of plaintiffs.

In deliberating Younas v. Okeahialam, the Senior Courts fell prey to judicial benevolence. The plaintiff alleged that the

defendant physician was negligent in failing to recognize an abnormality on his diagnostic tests and by not referring him

to a cardiologist, which could have averted his fall and consequent spinal injuries. The plaintiff utilized judicial

benevolence to lower the evidentiary standard for causation in medical negligence, ultimately allowing a plaintiff's

verdict.

When courts give credence to tenuous chains of causation, they set dangerous precedents. A juxtaposed analysis of Moon

v. El Paso highlights consequences of applying hasty techniques to address paucities in evidence, with several parallels to

judicial benevolence. With the rise of legal standards for physicians from cases such as Salgo v. Leland Stanford Jr. and

Tarasoff v. Regents, it is imperative that judicial benevolence's shortcomings are understood and regulated extensively.


65

Preferential Bias for Plaintiffs in Medical Negligence Litigations

Introduction

without the intervention of a judge, but if such attempts

fail, benevolence must yield to rule of law. Since two

The notion of interpersonal benevolence cannot exist in the

parties with dissimilar interests must be accorded equal

courtroom. An understanding of judicial benevolence

protection under the law, it would be arbitrary and

begins with an understanding of benevolence. Benevolence

capricious to afford benevolence to one at the expense of

is deeply rooted in society and is conventionally thought of

the other. Accordingly, the courtroom must remain a place

as the cornerstone of sympathy. Our modern understanding

of unbiased analysis, where the judge considers the

of benevolence originates in the writing of 18thcentury

British philosopher David Hume. Hume argued

evidence and does not disproportionately value the

emotions or desires of the parties.

that all humans are intrinsically sympathetic towards their

fellow man, and he defined sympathy as the tendency of an The concept of judicial benevolence leads to precisely the

individual to share the sentiments of those around him. 1 perversions of justice one would expect when parties are

By extension, the emotional state of the individual is not treated equally by the court. Judicial benevolence is

dependent on those of his peers. Consequently, the most often relied on by plaintiffs in medical negligence

individual is predisposed to act in a manner likely to foster suits, and it is bestowed upon plaintiffs against defendant

positive feelings in those with whom he interacts. 2 Adam physicians chiefly because the injury that warranted the

Smith defended a similar model of human interaction. litigation was allegedly caused by the defendant. The

Smith contended that benevolence is present in all humans. ?benevolence? of the court conventionally aids the injured

Though an individual?s motivations may appear selfish, plaintiff, whose loss of health could supposedly be

certain aspects of his character will nevertheless cause him mitigated by the partiality they receive in court. Therefore,

to consider the well-being of others. Like Hume, Smith conferring favoritism upon one party in a litigation is

believed that an individual who observes happiness in highly controversial in the context of medical negligence.

those around him will feel joy himself. 3 Whether

Medical Negligence Litigation

individuals further the happiness of others out of

self-interest or some innate benevolence, compromise and

Medical negligence litigation is the field within medical

accommodation between individuals reduces conflict,

law that allows a patient to seek restitution from their

thereby strengthening society as a whole. The works of

medical care provider on the basis that the provider was

both David Hume and Adam Smith argue that benevolence

negligent in treating the patient. 4 Medical negligence can

is a basic necessity in a society in which humans will

only be established if three elements are jointly proven.

experience interpersonal conflict, and the welfare of others

First, the physician must have owed the patient a duty of

depends on one?s ability to share and take into account the

care at the time of treatment. Second, the physician must

emotions of all. Though benevolence may promote

have breached that duty of care. Finally, the plaintiff must

cooperation and compassion in society, only the rule of

prove that the specific breach of duty of care alleged was

law can produce a society at all. Benevolence may induce

the direct cause of material injuries suffered by the

parties to try and reach a mutually agreeable settlement

plaintiff. That the doctor had a duty of care is almost

1. David Hume and L. A. Selby-Bigge, A Treatise of Human Nature (London: Fontana/Colins, 1978).

2. Heidi Li Feldman, ?Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law,? in Virtue Jurisprudence, ed. Colin Farrelly and

Lawrence B. Solum (London: Palgrave Macmillan, 2008), https://doi.org/10.1007/978-1-349-60073-1_3.

3. Adam Smith, The Theory of Moral Sentiments (London: Printed for A. Millar, A. Kincaid and J. Bell in Edinburgh, 1761).

4. Emily Jackson, Medical Law: Text, Cases, and Materials (Oxford: Oxford University Press., 2019).


66


always an obvious and easily provable element. However, would have happened in the hypothetical counterfactual, in

proving a breach of duty of care and proving causation which the defendant?s actions were different and resulted

between the breach of duty of care and the injuries suffered in a dissimilar outcome for the patient. The proposed

by the plaintiff are often difficult and highly technical counterfactuals of the defendant and plaintiff would likely

matters that require medical expertise, typically in the form differ because the defendant would assert that his actions

of expert witnesses.

were either not negligent in the true sequence of events or

that all other plausible counterfactuals would still have led

The subjective and uninformed application of judicial

to the plaintiff suffering from an injury of equal or greater

benevolence by the judge or jury should invite exceptional

magnitude. However, with the advent of judicial

scrutiny. Judicial benevolence leads to increased deference

benevolence, courts will more frequently default to

to the plaintiff, chiefly through an unequal burden of proof

accepting the counterfactuals posed by the plaintiff

separating the plaintiff and the defendant. This is

irrespective of whether the defendant articulates

incompatible with the principle of equal protection before

substantive arguments, because it is believed that the

the law. Both parties must present and defend

actions of the defendant forced the court to assess and

counterfactuals and be faced with an equal burden of

weigh counterfactuals instead of true events. In Younas v.

proof. The patient must prove that had the doctor acted

Okeahialam, a medical negligence litigation decided in the

differently, he would not have suffered his injuries. The

Senior Courts of England and Wales, judicial benevolence

physician must prove that had he acted differently, the

played an influential role, particularly when the court

patient would have suffered his injuries nevertheless. The

deliberated the condition of causation.

physician could also attempt to use the Bolam test, which

5 Younas v.

Okeahialam is merely a singular case that highlights the

assesses if a physician?s actions are in accordance with the

capacity of unrestrained judicial benevolence, but it

appropriate standard of reasonable care as determined by a

necessitates that we more effectively weigh in on the

larger body of physicians, to assert that his actions were

practicality of the speculative hypotheses created by

not negligent.

plaintiffs, who are motivated to obtain favorable verdicts.

Under the influence of judicial benevolence, judges and

When judicial benevolence is extended beyond its

juries can adopt increased leniency towards the plaintiff?s

appropriate scope, it becomes dangerous to parties

proposed counterfactual and hypotheses because of a

involved and society as a whole.

notion that the negligence of the defendant precluded the

Summary of Case

court from having access to a valid and unbiased

counterfactual. For instance, because the defendant acted In 2014, the plaintiff, Mr. Tahir Younas, visited the

in a manner considered negligent, a particular series of defendant physician, Dr. Majella Okeahialam, due to

events transpired. This series of events might be dissimilar symptoms of breathlessness and palpitations (atypical

from the events that would have transpired had the heartbeats) after exertion. 6 At the visit, the defendant

defendant acted in a manner not considered negligent, ordered an electrocardiogram (ECG) that revealed an

which could be regarded as a potential counterfactual. irregular rhythm indicative of intermittent atrioventricular

Consequently, the plaintiff can make claims about what (AV) block, which he later accepted. 7 However, the

5. Younas v. Okeahialam [2019] EWHC 2502 (QB) [6].

6. Ibid., EWHC 2502 (QB) [3].

7. Ibid., EWHC 2502 (QB) [3].


67


defendant did not refer the plaintiff to a cardiologist

because he believed that the symptoms were atypical of

classic intermittent AV block, leading the plaintiff to return

home undiagnosed. Three months later, the plaintiff lost

consciousness and fell in a manner that caused him to

suffer severe spinal cord injuries. The plaintiff?s loss of

consciousness was caused by the undiagnosed intermittent

AV block, a cardiac condition in which patients present

with shortness of breath, fatigue, loss of consciousness,

the defendant?s decision not to refer him should preclude

the defendant from having his counterfactual favorably

received by the court. 11 Therefore, the plaintiff proposed

that the actions of the defendant that allow this case to

exist in the first place provide ample reason for viewing

the defendant?s arguments and evidence more critically

than those of the plaintiff. Keefe v. Isle of Man Steam

Packet was also the source of the judicial benevolence

doctrine, as it was the first case to explicitly employ bias in

and lightheadedness. 8 Intermittent AV block is the plaintiff?s favor in medical negligence litigation due to

characterized by brief spells of irregular impulse

transmission from the sinoatrial node in the heart and is

corrected by a pacemaker, which stabilizes the impulse

irregularities. 9 After his fall, the plaintiff was hospitalized

and suffered several faints and spells of dizziness, leading

to the intermittent AV block diagnosis. 10 Consequently, the

plaintiff filed for litigation against the defendant physician

for failing to (1) recognize the irregularity on the ECG, and

(2) refer him to a cardiologist, who could have

recommended a pacemaker implantation to prevent him

from losing consciousness and suffering severe spinal cord

injuries.

Summary of Arguments

The absence of facts as to what would have truly transpired

the absence of conclusive evidence regarding the

counterfactual. The plaintiff in Younas v. Okeahialam

expanded on the case?s precedent and asserted that because

of the defendant?s actions, the defendant must accept risk

for unfavorable findings, allowing the plaintiff to suggest a

counterfactual regarding what could have happened had

negligence not occurred. This was demonstrated by the

plaintiff?s claim that had the defendant promptly diagnosed

his intermittent AV block, then the plaintiff would have

had a pacemaker inserted immediately. This raises the

critical issue of identifying when exactly the plaintiff

would have had a pacemaker implanted if the defendant

had acted more diligently, and whether the pacemaker

would have been implanted early enough to avert the loss

of consciousness responsible for the spinal cord injuries.

had the defendant physician appreciated the irregularity on

The hypothetical discussion of clinical intervention timing

the ECG and referred the plaintiff to a cardiologist allowed

was discussed in the prior case JAH v. Burne & Ors. In this

for dissimilar interpretations between the legal teams of the

case, there was uncertainty as to when a vascular surgeon

plaintiff and defendant. An excerpt from the case Keefe v.

could administer anticoagulation treatment, and the court

Isle of Man Steam Packet, ?The court should judge a

ultimately ruled that in times of uncertainty due to actions

claimant?s evidence benevolently and the defendant?s

evidence critically,? was cited by the plaintiff to assert that

of the defendants, the court will side with the plaintiffs. 12

8. Alban-Elouen Baruteau, Robert H. Pass, Jean-Benoit Thambo, Albin Behaghel, Solène Le Pennec, Elodie Perdreau, Nicolas Combes, Leonardo

Liberman, and Christopher J. Mcleod, ?Congenital and Childhood Atrioventricular Blocks: Pathophysiology and Contemporary Management,?

European Journal of Pediatrics 175, no. 9 (2016): 1235?48, https://doi.org/10.1007/s00431-016-2748-0.

9. Ibid; Mark Pollet, Yochai Birnbaum, and Alireza Nazeri, ?Heart Block in a Pacemaker: Does This Mean Trouble?,? Texas Heart Institute Journal

43, no. 3 (January 2016): 270-271, https://doi.org/10.14503/thij-16-5846.

10. Younas, EWHC 2502 (QB) [3-4].

11. Keefe v. Isle of Man Steam Packet Co. [2010] EWCA Civ 683 [65].

12. JAH v. Burne & Ors [2018] EWHC 3461 (QB) [64].


68


In JAH v. Burne & Ors, that meant the court would accept

the timing proposed by the plaintiff rather than that of the

defendants because the defendants? actions caused the

court to lack access to the evidence as a whole, which is

becoming the current standard for judicial benevolence in

medical negligence litigation. This case added a layer to

the doctrine of judicial benevolence that the plaintiff in

Younas v. Okeahialam invoked. This layer solidified that

plaintiffs can assert, on mere speculation, that clinical

interventions would have transpired at the earliest time

possible had they been aware of the condition, irrespective

of resource availability and other logistical concerns such

not only in the United Kingdom, but also globally. 14

However, in the defendant?s clinical notes, there were no

indications that the plaintiff inquired about the clinical

record or ECG, which is normally an expected feature to

record. Despite this being related to the condition of

causation and the existing precedent of adhering to

physicians? clinical notes, judicial benevolence was

applied here not only to contradict the prior precedent, but

also to allow the court to accept the plaintiff?s claim that

he had inquired about those items.

Shortcomings of Judicial Benevolence in Younas v.

Okeahialam

as appointment scheduling with a physician. Plaintiffs elect

to propose the earliest possible time so that they can assert

When extended beyond its appropriate scope, judicial

that had defendants acted in a non-negligent manner, the

benevolence can translate into biased courtroom

plaintiffs would not have suffered their injuries, which

would precisely justify the causation condition in medical

negligence. Similarly, the High Court in Younas v.

Okeahialam accepted the hypothetical posed by the

plaintiff and ruled with a plaintiff verdict.

deliberations, as exemplified in Younas v. Okeahialam. In

cases with insufficient evidence, the appropriate scope of

judicial benevolence would justify events that are definite

to occur, and it would be used only to justify the

occurrence of singular events, not an entire chain of

causation. Additionally, the likelihood of events being

However, in Younas v. Okeahialam, the scope of judicial

benevolence extended beyond merely the timing of clinical

intervention to satisfy the condition of causation.

Specifically, there was discussion between the parties in

court as to whether the plaintiff inquired about his own

clinical records and ECG report. The defendant asserted

that the plaintiff had not asked about it, and the plaintiff

asserted he brought it up for discussion multiple times but

it was never addressed fully. 13 Accepting the plaintiff?s

addressed with judicial benevolence must be near certain.

However, in Younas v. Okeahialam, the dangers of judicial

benevolence were revealed, including the granting of a

greater degree of credibility to a patient?s memory than a

physician?s written clinical notes, despite spinal cord

injuries. Another danger was the lenient acceptance of

what can largely be considered speculation by the plaintiff,

who was not a healthcare professional, in his delineation of

a counterfactual based on had he been notified of

perspective would amplify the court?s perception that the

intermittent AV block. The court accepted his

defendant was negligent and would be a strong argument

for ruling that negligence truly transpired. Typically, these

discrepancies are addressed by clinical notes, because

physicians are incentivized to maintain high quality notes

hypothesizing rather than that of the defendant physician,

who was better equipped to suggest such a counterfactual.

Regarding the first danger of judicial benevolence, the

preference of a patient?s memory over the physician?s

to retain their medical license and/or working privileges

13. Younas, EWHC 2502 (QB) [18].

14. Alexander Mathioudakis, Ilona Rousalova, Ane Aamli Gagnat, Neil Saad, and Georgia Hardavella, ?How to Keep Good Clinical Records,?

Breathe 12, no. 4 (2016): 369?73, https://doi.org/10.1183/20734735.018016.


69


written clinical notes could quickly undermine trust in There is also a practical shortcoming in using judicial

physicians if it becomes common practice. It could also benevolence. Just as patients experience injuries in an

lead to physicians altering their clinical note-taking habits incredibly personal manner, their beliefs about how their

to meet a new legal standard that is potentially medical care would have transpired if the physician was

counterproductive to delivering optimal quality of care to not negligent is also highly subjective. For instance, in the

patients. As for the second danger of judicial benevolence, case of Younas v. Okeahialam, the plaintiff claimed that he

this case discredits physicians, who enter the field to treat would have had a pacemaker implanted immediately after

those that are ill after undergoing extensive education. being diagnosed with intermittent AV block. More

There is a struggle in courtrooms regarding accepting specifically, the plaintiff argued that he would have

hypotheticals proposed by physicians, who are potentially scheduled and undergone pacemaker implantation within

culpable of negligence, because of a possible incongruity four weeks. This is quixotic because there are over one

between the physician?s technical expertise and the million pacemakers implanted into patients annually,

physician?s self-interest in receiving a favorable verdict. It underscoring the high degree of demand for the

can reasonably be inferred that if defendants received intervention. 16 The plaintiff?s claim is thrown further into

similar biases as plaintiffs receive in cases with judicial doubt by the National Health Service (NHS) website, on

benevolence, more rulings would be in favor of which the governing healthcare body in the United

defendants.

Kingdom publishes information about the services that

residents of the United Kingdom are entitled to under their

However, there is merit to offering defendant physicians an

national healthcare insurance, because it explicitly states

equally weighted opinion in cases deliberating causation,

that if pacemaker implantation is not life-threatening,

as opposed to providing them with the currently

patients should expect to wait as long as 18 weeks for the

disadvantaged opinion, because physicians conventionally

procedure.

swear to oaths such as the Hippocratic Oath upon

17 It is therefore untenable to assume that the

plaintiff is correct in his speculative yet unequivocal

beginning their medical career. The Hippocratic Oath

certainty that he would have received a pacemaker within

champions ideals such as sharing scientific knowledge

four weeks that would have prevented his loss of

with others, consciously attempting to prevent disease at

consciousness and spinal cord injuries.

every juncture possible, and being cognizant of physicians?

role in society to provide services that benefit the health of Therefore, the logistical analysis of judicial benevolence

others. 15 Therefore, it is not only distasteful and biased to highlights that if it is considered acceptable, it could not be

burden those who serve in this profession with a applied to everyone from a statistical perspective. The

disadvantage in articulating a counterfactual, but it also delivery of such a clinical intervention must follow a

underutilizes physicians as a source of relevant technical predictable distribution pattern since it is being applied to

expertise who are invested in consciously preventing society at large, so a potential model would be a normal

disease in others.

distribution. This is because if there is variation in the

15. Rachel Hajar, ?The Physician's Oath: Historical Perspectives,? Heart Views 18, no. 4 (2017): 154, https://doi.org/10.4103/heartviews.

heartviews_131_17.

16. Mª Reyes Carrión-Camacho, Ignacio Marín-León, José Manuel Molina-Doñoro, and José Rafael González-López, ?Safety of Permanent

Pacemaker Implantation: A Prospective Study,? Journal of Clinical Medicine 8, no. 1 (2019): 35.

17. ?Pacemaker Implantation,? NHS Choices, NHS, October 27, 2020, https://www.nhs.uk/conditions/pacemaker-implantation/what-happens/.


70


waiting time for pacemaker implantation, every single The " Guilty Until Proven Innocent" Perspective

plaintiff who files for litigation cannot claim that he would

In addition to its contradiction with ?innocent until proven

have had a pacemaker implanted within the first or even

guilty,? this case has applications to other aspects of

the first four weeks after diagnosis, which would be

modern U.S. law. For instance, there were deliberations

statistically impossible in a large population. This is due to

regarding how insufficient information should be

recognized distribution channels, formalized forms of

addressed and which party?s counterfactual should be

delivery, and a limited supply of resources, in terms of

accepted by the court. This is present in many landmark

both healthcare professionals and clinical resources such as

cases in the United States, such as Moon v. City of El Paso.

hospital beds. Therefore, one may suggest employing

There was a paucity of information during the initial ruling

different determining characteristics to decide who

of the case, which enabled Brandon Moon to be

receives pacemaker implantation, and decide which

erroneously convicted of rape and serve 16 years in

plaintiffs receive judicial benevolence that way; however,

prison. 18 Moon?s exoneration was driven by the work of

that is a discriminatory and unethical practice which is

the Innocence Project, which strives to ensure that

antithetical to law. Therefore, the allowance of judicial

wrongful convictions are addressed and works towards the

benevolence in society is by its very nature a contradiction.

exoneration of innocent individuals. 19 The case of Moon v.

The " Innocent Until Proven Guilty" Mantra

City of El Paso, decided in 1988, represents an era of law

in which eyewitness evidence was largely considered

These debates exist outside of medical law, albeit in

reliable and was used to compensate for a paucity of

different forms, but they are present nonetheless. For

information. The victim in Moon was unable to identify

instance, prosecutors must meet evidentiary standards and

her masked assailant, and eyewitness evidence was

a burden of proof in criminal law when they prosecute a

allowed to fill in the blanks, leading to the erroneous

defendant. The defendant is considered innocent until

conviction of Brandon Moon.

proven guilty. One potential rationale for this is an

20 However, with the advent

of DNA testing, the court was able to conclusively rule that

aversion to erroneously punishing an individual who

Moon was not the true criminal after 16 years.

committed no foul. However, with judicial benevolence,

the reverse occurs: the defendant physician argues against Moon v. City of El Paso and Younas v. Okeahialam both

a plaintiff who gets his evidentiary standard and burden of possessed a paucity of evidence for the court to utilize

proof lowered. This does not complement the ?innocent when arriving at a fair verdict. In Moon, the court initially

until proven guilty? mantra that prosecutors are familiar relied on unreliable eyewitness testimony and was forced

with in criminal law; rather, it directly contradicts it. In the to overturn its ruling upon receiving DNA testing results.

absence of conclusive evidence the evidentiary standard is Given the technology and evidence available to the court

lowered, making it easier to rule in favor of the plaintiff. in the era of Moon v. City of El Paso, few can argue with

This is not only unjust but also unfair to physicians who

how the court ruled. However, it serves as a lesson that the

enter the profession to heal others.

manner in which a court decides to fill a dearth of

information has drastic consequences for all parties

18. Margie Kelley, ?Guilty until Proven Innocent,? Harvard Law Today, Harvard University, September 1, 2005,

https://today.law.harvard.edu/feature/guilty-proven-innocent/.

19. Ibid.

20. Moon v. City of El Paso, 906 F.3d 354?355 (2018).


71


involved. There was a similar paucity of evidence in

Younas v. Okeahialam, and just like the actions of the court

in Moon v. City of El Paso, the way in which the court

addressed that paucity is highly questionable from a

serve society; granted, they see patients on an individual

basis, but their efforts and services have a multiplicative

effect that affects society as a whole. Despite this, the legal

standards of medicine continue to rise. This could make it

vantage point in 2020.

exceptionally dangerous for clinicians, who may

Concomitantly Raising Legal Standards of Clinical

Medicine while Undermining Trust in Clinicians

eventually struggle to satisfy increasingly stringent legal

criteria while simultaneously delivering clinically tenable

care to patients.

Younas v. Okeahialam has a potential third application to

U.S. law, namely scrutiny on the moral compasses of

physicians. In Younas v. Okeahialam, the court decided to

favor the plaintiff?s version of the facts and evidence

despite having access to the physician?s clinical notes. The

topic of using law to delineate the moral duty of physicians

was previously discussed in Salgo v. Leland Stanford Jr.

University Board of Trustees in 1957, which ruled that

physicians violate their ethical obligations when they

withhold information that would allow patients to make

more informed decisions. 21 However, the ethics of a

physician as decided by courts does not end here. There

are countless other cases, including Tarasoff v. Regents of

the University of California in 1976, in which it was ruled

that a physician must maintain a threshold of patient

privacy while also attempting to prevent their patients

from inflicting harm on others. 22 This is extremely difficult

and beyond the scope of the responsibilities of a physician

because law enforcement is responsible for preventing

harm from occurring, and physicians should be allowed to

confide in them to effectively mitigate danger. Physicians

Furthermore, the impact of lawsuits is neither ephemeral

nor trivial to physicians. In a 2015 survey, 26 percent of

male physicians and 36 percent of female physicians

revealed that being sued for medical malpractice was ?one

of the worst experiences of [their] lives,? and 20 percent of

the total sample said it was ?disruptive and humiliating.? 23

The current landscape of medical malpractice already adds

excessive burden to physicians, and while it is valid to

believe that physicians should be tightly regulated to

provide the best possible care to patients, this notion adds

an underappreciated cost to clinical care. Excessive

amounts of diagnostic testing and note-taking are

becoming omnipresent in healthcare settings, not for

clinical purposes, but for physicians to safeguard

themselves against increased legal liability, which

decreases the amount of time a physician can spend with

patients and increases the likelihood of medical errors. 24 It

is paramount to expect fairness and impartiality when

filing a case of any size, stature, or media exposure. There

are countless methods to practically preserve courtrooms

21. Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957).

22. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14. (Supreme Court of California 1976).

23. Alicia Gallegos, ?How doctors can spot patients likely to sue,? American Medical News, February 4, 2013,http://www.amednews.com/article/

20130204/profession/130209992/4/; Carol Peckham, ?Medscape Malpractice Report 2015: Why Most Doctors Get Sued,? Medscape News &

Perspective, December 9, 2015, http://www.medscape.com/features/slideshow/public/malpractice-report-2015.

24. Lisa M. Reisch, Patricia A. Carney, Natalia V. Oster, Donald L. Weaver, Heidi D. Nelson, Paul D. Frederick, and Joann G. Elmore, ?Medical

Malpractice Concerns and Defensive Medicine,? American Journal of Clinical Pathology 144, no. 6 (2015): 916?22; Joseph Bernstein,

?Malpractice: Problems and solutions,? Clinical Orthopaedics and Related Research 471, no. 3 (2013): 715?720.


72


as venues to address conflict in an impartial manner while accountable for events outside of physicians?control. For

not actively belittling a profession that spends many years instance, in a highly regarded study in the New England

training to bestow a better quality of life upon all the Journal of Medicine, adverse clinical events were present

individuals they meet. 25 For an institution that is asking in 3.7 percent of all hospitalizations in New York, with

more and more of physicians, courtrooms are woefully negligence present in below 30 percent of those cases. 27

deriding physicians by preventing their interpretations of This translates to patients believing in over 70 percent of

facts and evidence to be judged on an equal basis to those the cases that the physicians?actions were related to the

of the plaintiff patients.

injuries they sustained, even if the physicians satisfied all

obligations of care to them. Rising legal standards for

Additionally, there are economic consequences of allowing

clinicians reinforce a positive feedback loop that not only

biased legal strategies to enter courtrooms. For instance, if

has unrealistic expectations for physicians, who worry

there is growing acceptance of strategies such as judicial

incessantly about the potential legal exposure each patient

benevolence, physicians will more frequently find

could bring, but also damage the patient?physician

themselves on the receiving end of medical malpractice

relationship, which is an established hallmark of quality

suits, extending beyond solely medical negligence. This is

care.

because plaintiffs will be more confident of success,

28

irrespective of the legitimacy of the litigation they plan to Allowing judicial benevolence to persist unbridled will

file. Consequently, a greater number of frivolous lawsuits inevitably lead to landmark cases with highly controversial

will arise, occupying the time of courts and physicians, rulings in favor of plaintiffs. This will discourage

both of which could be more effectively used for the defendant physicians from being an active part of legal

greater good of society. The opened floodgates for discussions because they will begin to hold preconceived

frivolous lawsuits and the increased likelihood of being notions in litigations deliberating causation, which must be

sued will cause physicians to practice defensive medicine undertaken in clinical negligence cases, that courts will not

even more heavily, which already contributes over 82 provide them with a fair and equitable opportunity to

percent, or $45 billion, of the total $55.6 billion medical articulate their perspectives and narrate the events that

liability industry behemoth in the United States. 26 It will transpired or were likely to transpire. Therefore, it is

also strengthen the desire of patients to hold physicians imperative that restrictions are imposed on judicial

25. Daniel P. Kessler, ?Evaluating the medical malpractice system and options for reform,? The Journal of Economic Perspectives: A Journal of the

American Economic Association 25, no. 2 (2011): 93?110; Mark A. Rothstein, ?Currents in Contemporary Bioethics. Health Care Reform and

Medical Malpractice Claims,? The Journal of Law, Medicine & Ethics: A Journal of the American Society of Law, Medicine & Ethics 38, no. 4

(2010): 871?874; Hao Yu, Michael Greenberg, and Amelia Haviland, ?The Impact of State Medical Malpractice Reform on Individual-Level Health

Care Expenditures,? Health Services Research 52, no. 6 (2017): 2018?2037; Patricia H. Born, J. Bradley Karl, and W. Kip Viscusi, ?The Net Effects

of Medical Malpractice Tort Reform on Health Insurance Losses: the Texas Experience,? Health Economics Review 7, no. 1 (2017): 42; Christopher

M. Burkle, ?Medical Malpractice: Can We Rescue a Decaying System?,? Mayo Clinic Proceedings 86, no. 4 (2011): 326?332, 26; Michelle M.

Mello, Amitabh Chandra, Atul A. Gawande, and David M. Studdert, ?National Costs of the Medical Liability System,? Health Affairs 29, no. 9

(2010): 1569?1577.

27. Troyen A. Brennan, Lucian L. Leape, Nan M. Laird, Liesi Hebert, A. Russell Localio, Ann G. Lawthers, Joseph P. Newhouse, Paul C. Weiler,

and Howard H. Hiatt, ?Incidence of Adverse Events and Negligence in Hospitalized Patients,? New England Journal of Medicine 324, no. 6 (1991):

370?76, https://doi.org/10.1056/nejm199102073240604.

28. Michelle M. Mello, David M. Studdert, Catherine M. Desroches, Jordon Peugh, Kinga Zapert, Troyen A. Brennan, and William M. Sage,

?Caring For Patients In A Malpractice Crisis: Physician Satisfaction And Quality Of Care,? Health Affairs 23, no. 4 (2004): 42?53.


73


benevolence in medical negligence lawsuits that allow it to confined to explicitly-stated domains, where it is used to

exist, but in a checked domain that is under the purview of justify singular events of high likelihood and not entire

legal and medical professionals alike.

chains of causation. Additionally, judicial benevolence

should not intertwine unrealistically or occur excessively

Conclusion

in societies comprised of patients who demand treatments

Judicial benevolence is rooted in how humans interact and

should not be abolished completely. 29 and clinical interventions in a timely manner, because to

Medical law has

ensure judicial benevolence is fairly distributed in a

consistently raised the standards of clinical medicine at

statistically tenable manner, such as under normal

rates deemed unsustainable by some and acceptable by

distribution, it would necessitate a degree of discrimination

others. There is utility in elevating the voice of the injured

in which certain users exist on the tails of the distribution

plaintiff, and there are permissible examples of doing so in

and others exist near the mean. Fair and just cases are a

deliberations. However, the jurisdiction of judicial

hallmark of an equitable society, and it would be

benevolence should not be expanded to exempt multiple

counterproductive to hastily give preferential treatment to

layers of plaintiffs? arguments from practical scrutiny as

one party at the expense of another.

was the case in Younas v. Okeahialam. Therefore, it is

essential that the perquisite of judicial benevolence is

29. Hume?s model and Smith?s model both go into great detail about the benefits to oneself and society if benevolence is an active part of one?s life.

However, their models do not account for the intricacies of benevolence within modern law, particularly medical law.


74

THE RIGHT TO PRIVACY IN THE

COVID-19 ERA: THE CASE OF

AAROGYA SETU

Laila Rodenbeck

ABSTRACT

The rise of contact tracing apps in response to the COVID-19 pandemic has raised an unprecedented number of privacy

concerns over their use of users?personal data. This paper evaluates the Government of India?s (GOI) COVID-19 contact

tracing app, Aarogya Setu, to determine the extent to which the app?s implementation represents a violation of individual

privacy. Setting the app in the context of Indian as well as international privacy regulations, and in contrast with other

contract tracing apps, I find that Aarogya Setu?s current design and regulation represents a disproportionate violation of

citizen?s privacy. This paper recommends that in order for the app to adhere to international guidelines, the government

should implement greater transparency around the use of user?s data, and elect a legally authorized monitoring body.


75

The Right To Privacy in the COVID-19 Era: The Case of Aarogya Setu

Introduction

As the COVID-19 pandemic has accelerated, governments

across the world are increasingly turning towards

is expected to be mandated for air passengers when

commercial air traffic resumes. 3

This unregulated use of Aarogya Setu raises two major

technological tools to contain the virus. Many concerns? privacy violations and ineffective public health

countries? notably South Korea, China, Singapore, and

Australia? have developed mobile phone applications

(?apps?) to facilitate contact tracing. The apps use

bluetooth data to track users? individual location and as

well as their proximity to other users, enabling

comprehensive contact tracing when a user is found to

have tested positive for the novel coronavirus.

In April 2020, India launched its own mass contact-tracing

platform: Aarogya Setu, or ?Bridge to Wellness? in Hindi.

Developed by the government?s National Informatics

Centre (NIC) at the urging of Prime Minister Narendra

Modi, Aarogya Setu crossed 50 million downloads within

13 days of its launch, surpassing Pokémon Go as the

world's fastest-growing mobile app. 1 By May 13, 2020, the

app had reached 100 million downloads. 2 The rapid spread

of the app was largely due to mandates issued by the

Indian government. In an order on April 29, 2020, the

central government made it mandatory for all government

employees to download the app. The Union Home

Ministry also said that the application is mandatory for all

living in the COVID-19 containment zone. Yet as it stands,

there are limited regulations over what kind of data will be

collected, who it will be shared with, and how long it will

be retained. The government gave the announcement along

with the nationwide lockdown extension by two weeks

from May 4, with certain relaxations. Aarogya Setu is now

required for all employees in both the private and public

efforts. Users run the risk of having their data exploited for

coercive state or commercial ends, both during and after

the crisis. The lack of regulation is concerning not only for

the civil rights violations it may precipitate, but also

because a lack of trust in the app could deter individuals

from using it. If enough people are deterred from using the

app because of privacy concerns, contact tracing efforts

through the app will be unsuccessful? the app must have a

penetration of at least 50 percent to be effective. 4

This paper is centered around two fundamental questions

that the use of the Aarogya Setu app raises. First, what

degree of government intrusion, with the incumbent risks

to individual privacy, is necessary for effective contact

tracing in India? And second, what degree of government

intrusion is acceptable during a public health crisis? To

address these questions, I begin with an overview of the

contact tracing process and of the Aarogya Setu app. To

determine the extent of Aarogya Setu's violation of

individual privacy, I next evaluate the compliance of

Aarogya Setu with data protection principles set out in the

European Union?s General Data Protection Regulation

(GDPR) and the Indian draft Personal Data Protection Bill

(PDPB). In order to better understand to what extent

privacy violations are necessary to ensure effective

app-based contact tracing, I also evaluate the compliance

of tracing apps developed by other countries with the same

data protection principles.

sectors, as well as for all travelers on Indian railways, and

1. FPJ Web Desk, ?Go Aarogya Setu Go: Modi Govt's App Pushes aside Pokémon GO to Become Fastest Growing Mobile App with 50 Million

Users,? Free Press Journal, April 15, 2020, www.freepressjournal.in/india/go-aarogya-setu-go-modi-govts-app-pushes-aside-pokmon-go-tobecome-fastest-

growing-mobile-app-with-50-million-users.

2. ?Aarogya Setu App Download: Aarogya Setu App Enters 100 Million Users Club - Times of India,? Times of India, May 13, 2020,

timesofindia.indiatimes.com/gadgets-news/aarogya-setu-app-enters-100-million-users-club/articleshow/75709726.cms.

3. ?Aarogya Setu Mandatory for Train Travel; Could Be Required for Air Travel Too,? Indian Express, May 13, 2020,

indianexpress.com/article/technology/social/aarogya-setu-mandatory-air-travel-flights-6406651/.

4. Sidharth Deb, Public Policy Imperatives for contact tracing in India (April 11, 2020), Internet Freedom Foundation Working Paper No. 3/2020.


76


Pursuant to this analysis, I will argue that Aarogya Setu, in

its current form, represents a disproportionate and

ultimately unnecessary infringement on the privacy rights

of the Indian people. I conclude by presenting policy

recommendations for bringing Aarogya Setu into closer

tracing efforts. Numerous governments, thrown into a state

of panic by the immeasurable human and economic costs

of ?lockdown? and pressures on their health systems, are

training teams of contact tracers to monitor the disease?s

spread. However, the virus?s characteristics? being both

compliance with the privacy protection frameworks highly contagious and often presenting

outlined, while recognizing the need for limited privacy

violations during a global pandemic.

Contact Tracing

Contact tracing is a public health strategy for disease

containment. It has a long and successful history, most

recently the suppression of the Ebola, HIV, and SARs

epidemics. Its goal is to not only to identify and isolate

those who are known to have contracted a disease, but to

try to curb its spread by priority testing those who may

asymptomatically? pose several problems for traditional

contact tracing methods, which are not only slow and

difficult to scale, but are often reliant on physical

proximity between the infected individual and the

interviewer. 6 Faced with this challenge, governments and

private developers have capitalized on the ubiquity of

smartphones and pivoted towards digital contact and

proximity tracing. In Israel, for instance, state security

forces began tracking mobile-phone location data, while

the South Korean government went a step further by

have come into contact with infected persons. Traditionally

broadcasting messages about infected individuals?

conducted by large groups of volunteers, or ?contact

tracers,? the process involves first testing and isolating

positive cases, then interviewing them to create a list of

contacts who are subsequently notified, tested, and/or

quarantined. Because monitoring of this kind allows

healthcare workers to prioritize medical infrastructure in

certain areas, epidemiologists underline contact tracing?s

potential to allow for rapid, localised decision making

without placing stress on existing resources? an important

consideration for healthcare systems or states with limited

capacity. 5

movements over social media. 7 The most popular

government response, however, has been the ?contact

tracing app.? On March 20, Singapore released a voluntary

app named TraceTogether alongside its open source code,

which uses Bluetooth data to monitor when two users have

come into proximity with one another, and that allows the

Ministry of Health to access the data once a user tests

positive. 8 Since then, according to the MIT Technology

Review?s Covid Tracing Tracker project, 25 states have

launched their own iterations, which similarly rely on

either Bluetooth proximity data and/or GPS location

The current outbreak of the novel coronavirus, tracking. 9

SARS-CoV-2, (which causes a potentially deadly disease,

Aarogya Setu

COVID-19), which originated in Wuhan, China in

December 2019, has precipitated a global surge of contact

The Indian Government?s Aarogya Setu app, developed by

5. Shruti Rajagopolan, ?Pandemic Policy in Developing Countries: Recommendations for India,? Mercatus Center, April 9, 2020,

https://www.mercatus.org/publications/covid-19-policy-brief-series/pandemic-policy-developing-countries-recommendations-india.

6. "Exit Through The App Store,? Ada Lovelace Institute, April 20, 2020, 27,https://www.adalovelaceinstitute.org/wp-content/uploads/2020/04/Ada-

Lovelace-Institute-Rapid-Evidence-Review-Exit-through-the-App-Store-April-2020-2.pdf.

7. Ibid., 20.

8. Hyunghoon Cho et al., ?Contact Tracing Mobile Apps for COVID-19: Privacy Considerations and Related Trade-offs,? ArXiv, March 30, 2020, 1,

https://deepai.org/publication/contact-tracing-mobile-apps-for-covid-19-privacy-considerations-and-related-trade-offs.

9. Patrick Howell O?Neill et al., ?A Flood of Coronavirus Apps Are Tracking Us. Now It's Time to Keep Track of Them,? MIT Technology Review,

May 12, 2020, https://www.technologyreview.com/2020/05/07/1000961/launching-mittr-covid-tracing-tracker/.


77


Electronics and Information Technology (MeiTY), unique ID that remains unchanged, the process is not

launched on April 3, 2020 and has since become the

?giant? among its peers. After being advertised by Prime

Minister Modi in a national address, it became the fastest

app to reach 50 million downloads in just two weeks. 10

Now with nearly 100 million users, it dwarfs the world?s

next most downloaded app, Australia?s COVIDSafe, with 5

anonymized. By contrast, Singapore?s TraceTogether uses

continuously randomized IDs to keep users private from

one another. 16 In effect, to quote cybersecurity expert

Patrick Howell O?Neill, ?the world has never seen

anything quite like Aarogya Setu.? 17

The Right to Privacy

million downloads. 11 The app is intended to ?empower

people with better information on the potential risk of

infection, self-assessment and contextual advice.? 12 Yet

what sets Aarogya Setu apart is that the extent to which its

data collection exceeds its peers. Many countries? apps,

particularly those in the European Union (EU), are limited

to using either Bluetooth or GPS to give ?exposure

notifications? to those who have been in contact with

people who test positive for COVID-19. 13 Aarogya Setu,

on the other hand, not only tracks Bluetooth contact events

and location simultaneously, but also gives users a

color-coded signal denoting infection risk, and offers

?telemedicine, an e-pharmacy, and diagnostic services.? 14

Whereas other nations have sought to minimize the extent

to which data is centralized and accessible to the

government so as to protect user?s privacy, user?s

movements, as well as their phone number, age, and sex,

are uploaded by Aarogya Setu to a central server managed

As one might expect, the unprecedented volume of

personal data that Aarogya Setu? and contact tracing apps

in general? process has raised a host of legitimate privacy

concerns. As Estelle Massé, senior policy analyst at digital

rights group Access Now, has noted, there lies a

considerable risk of ?initiating a tool that can be

repurposed for surveillance after the pandemic.? 18 Yet

when personal data processing is required for effective

digital contact tracing, how are regulators to reconcile

public health needs with the users?right to privacy?

Both Article 12 of the Universal Declaration of Human

Rights and Article 17 of the International Covenant of

Civil and Personal Rights (ICCPR) condemn any

?arbitrary and unlawful interference? with an individual?s

privacy and restrict the processing of personal data. 19 The

EU?s General Data Protection Regulation (GDPR), and the

Indian government, by virtue of a precedent articulated in

by the Government of India (hereafter referred to as the 2017 Supreme Court judgment entitled K.S.

GOI). 15 Because the information is also tagged with a Puttaswamy v. Union of India, both recognize data

10. Patrick Howell O?Neill, ?India Is Forcing People to Use Its Covid App, Unlike Any Other Democracy,? MIT Technology Review, May 7, 2020,

https://www.technologyreview.com/2020/05/07/1001360/india-aarogya-setu-covid-app-mandatory/.

11. Ibid.

12. ?Press Release: Government of India launches Aarogya Setu ? a mobile application to fight the spread of COVID-19 and flatten the curve,?

MediaNama, accessed November 20, 2020, https://www.medianama.com/wp-content/uploads/Aarogya-Setu-Tech-Release-Final.pdf.

13. O?Neill, ?Unlike Any Other Democracy.?

14. Ibid.

15. Pranav Mukul, ?Fighting COVID with phones,? Indian Express, May 2, 2020, https://indianexpress.com/article/explained/covid-19-phones

-aarogya-setu-app-india-lockdown-6389488/.

16. Cho et al., ?Privacy Considerations,? 2.

17. O'Neill, ?Unlike Any Other Democracy.?

18. Ibid.

19. ?OHCHR: The Right to Privacy in the Digital Age,? accessed May 15, 2020, 2, https://www.ohchr.org/Documents/Issues/DigitalAge/

ReportPrivacyinDigitalAge/HRBDT.pdf.


78


protection as part of this fundamental and constitutional

right. 20 Crucially, however, all of these regulations make

an exemption for data processing conducted during a

public health emergency? so long as this limitation of

fiduciary is responsible for setting in place these measures

(accountability). Notably, these guidelines are derived

almost precisely from the GDPR?s principles on data

processing.

privacy is governed by the overarching principles of

The current problem however, lies in the fact that the

legality, necessity and proportionality. According to both

PDPB has not been enacted into law; it remains in

the Puttaswamy judgement and the GDPR, a privacy

committee. As such, India lacks a comprehensive personal

infringement demonstrates legality, when it is governed

data protection law that can regulate the use of health data.

through state law. Then, the privacy restriction must be

As a working paper by the Internet Freedom Foundation

demonstrated as having necessity, i.e., being the most

(IFF), an Indian digital rights advocacy group, points out,

suitable means of addressing the app?s stated purpose and

the legal provisions that do exist, such as Section 43A of

the least intrusive alternative. 21 Lastly, and perhaps most

the Information Technology Act (IT Act), 2000, and the

elusively, the limitation should comply with

Information Technology Rules (?SPDI Rules?), 2011, have

proportionality, in the strict sense that ?there must be a

?limited applicability? beyond categorizing health data as

balance between the extent to which rights are infringed

sensitive personal data, and suffer from a lack of

and the state?s legitimate purpose.? 22

Defining how exactly this proportionate ?balance? is to be

arbitrated was the aim of the Personal Data Protection Bill

(PDPB) introduced in the Indian lower house of

parliament, the Lok Sabha, in 2019. As per the PDPB?s

principles, the consent of the person whose data is being

collected (often called the data principal) must be ensured

before the government (the ?data fiduciary? in this case)

collects the data. 23 Once collected, the data must be used

only for the specific purpose for which the consent was

initially granted (purpose limitation). 24 The processing

itself must also be governed by a state law and conducted

enforcement. 26 Given this lack of statutory protection,

contact tracing apps in India pose a serious risk of mass

surveillance. That being said, the Indian government is still

beholden to the Supreme Court?s judgement in KS

Puttaswamy v Union of India, and namely its requirements

for legality, necessity, and proportionality. While ways

forward for the regulation of Aarogya Setu must certainly

lie in the first two of these principles? legality and

necessity? determining what degree of infringement

complies with the principle of ?proportionality? before the

PDPB bill is passed may require India to look for

inspiration beyond its borders.

in a transparent manner (lawful processing and

Potential Regulatory Approaches: Lessons from Global

transparency). 25 Moreover, personal data must not be

retained by the data fiduciary beyond when it is necessary

(storage limitation and the right to be forgotten). The

Examples

Legality

20. Nikhil Pratap and Kashish Aneja, ?1.3 Billion People, One Virus, How Much Privacy?? Bar and Bench, Apr. 3, 2020,

https://www.barandbench.com/columns/13-billion-people-one-virus-how-much-privacy.

21. "What Is GDPR, the EU's New Data Protection Law?? GDPR.eu, February 13, 2019, https://gdpr.eu/what-is-gdpr/.

22. Pratap and Aneja, ?How Much Privacy??

23. Lok Sabha, ?Personal Data Protection Bill 2019,? Bill No. 373 of 2019, 6-8.

24. Ibid., 8.

25. ?What Is GDPR,? GDPR.eu.

26. Deb, 10.


79


under the purview of state law has been at the centre of Transparency

many countries' regulation of contract tracing apps. This

In order to allow users to grant informed consent, most

has most commonly involved one of two paths: calling a

democracies that have developed their own contact-tracing

state of emergency, or invoking existing laws. Israel, for

apps have explicitly publicized who does or does not have

instance, has introduced emergency legislation which

access to users?personal data. Australia, for instance, has

allows for the surveillance of mobile-phone location data

announced that user?s information will only be assessed by

for its app, HaMagen. 27 Meanwhile, South Korea, due to

state public health officials. Even the courts, according to

its experience with the MERS virus, was able to to take the

the Australian Minister of Health, will not be able to

second approach to handle the COVID-19 crisis. Article

access the data. Similarly, Singapore announced to users

76-2(2) of South Korea?s Infectious Disease Control and

that TraceTogether was developed as a joint initiative of

Prevention Act (IDCPA), had been amended after the last

the Singaporean government?s technology agency

epidemic to grant the Minister of Health the authority to

(GovTech) and the Ministry of Health, and that they would

collect personal data, without consent, from positive as

only be able share their data with the Ministry. 31 Both apps

well as suspected cases. 28

have also been technologically transparent by making their

While such laws may not represent a proportionate source code publicly available on GitHub, allowing

intrusion of privacy in themselves, they do at minimum independent audits to confirm these claims. 32

comply with the principle of ?legality? in sanctioning their

By contrast, in the first six months after Aarogya Setu?s

government's processing of personal data. By comparison,

launch, government communication on who has access to

the laws that India has invoked in response to the

the data and how the app works remained conspicuously

pandemic, and to enforce the lockdown that began on

opaque. Neither the membership of the committee elected

March 24, do not appear to legally authorize the collection

to ?govern? the processed data, the app?s source code, nor

of personal data, with or without consent. The Ministry of

the identity of the private partners involved in the

Home Affairs has so far invoked the 2005 Disaster

public-private partnership (PPP) that developed the app

Management Act and the colonial-era 1897 Epidemic

were disclosed. While the government has recently

Diseases Act which, Supreme Court lawyer Nikhil Pratap

published the source code, the government?s historical lack

argues, ?do not provide for a mechanism to collect or

of transparency has sparked fears of the system being

process personal data.? 29 As such, he maintains, the

controlled by revenue-seeking industrial behemoths

government?s collection and processing of personal data

profiting off of ?surveillance capitalism.? 33 Without

?is not sanctioned by law and is being undertaken on an

knowing the current role occupied by private stakeholders

ad-hoc basis?? thereby violating the principles of data

in controlling the app, or their input in the future, the

protection under the Puttaswamy framework. 30

question of how users can provide informed consent

27. Joe Tidy, ?Coronavirus: Israel Enables Emergency Spy Powers,? BBC News, March 17, 2020, https://www.bbc.com/news/technology-51930681.

28. Brian Kim, ?Lessons for America: How South Korean Authorities Used Law to Fight the Coronavirus,? Lawfare, March 16, 2020,

https://www.lawfareblog.com/lessons-america-how-south-korean-authorities-used-law-fight-coronavirus.

29. Pratap and Aneja, ?How Much Privacy??

30. Shreyasi Singh, ?Contact Tracing Applications to Monitor COVID-19: The Aarogya Setu App and the Right to Privacy,? Bar and Bench, April

16, 2020, https://www.barandbench.com/apprentice-lawyer/monitoring-covid-19-right-to-privacy-amidst-contact-tracing-applications.

31. Deb, 28.

32. Ibid., 56.

33. Shoshana Zuboff, quoted in Ibid., 82.


80


remains a concern. Moreover, the issue of accountability, identify ?one infected person at the Indian Parliament and

should the user?s data be breached, remains undetermined. three at the Home office? after hacking into Aargoya

For the app to constitute a proportionate intrusion of Setu. 37 According to the IFF, the government also appears

privacy, increased transparency must therefore be a to be able to access users' interactions in real-time, which it

government priority.

is able to combine with people?s health records and

potentially re-identify them.

Data Minimization

38 In light of the government?s

capabilities, applying data minimization principles in the

To abide by data minimization set out in the PDPB and

app?s design will be central to ensuring the app?s

GDPR, only information relevant to contact tracing and

proportionality.

combating the disease?s spread should be collected.

Purpose Limitation

Geographic location data, for instance, used in South

Korea and China, is not in fact strictly necessary to support Limiting the purpose of the app so that it is only used to

contact tracing; false readings of proximity and ?contact? mitigate the spread of COVID-19 has been a top priority

are actually more common when using GPS tracking, since for many regulators managing the privacy of contact

being in the same apartment building as someone else, for tracing apps. In the EU, many countries have abided by the

example, does not necessarily imply that one is at risk of European Parliament?s updated privacy recommendations

infection. Collecting data not strictly relevant to judging by enacting a national data protection authority (DPA) and

people?s proximity also makes re-identifying users easier legislation detailing the specific usage of the data for

for third parties, policy analyst Sidarth Deb notes. 34 For contact tracing. In France for example, the French DPA

these reasons, TraceTogether, COVIDSafe, and the (the ?CNIL?) has outlined that the French StopCovid app is

Google-Apple API only gather Bluetooth proximity data. only to be used to inform users about their relative

Crucially, across all three platforms, the unique IDs tied to proximity to positive cases, and not as a measure of

each user?s app are ?dynamic," i.e., they are changed compliance for quarantine or self-isolation. 39 Others have

frequently. In Google-Apple?s case, these are refreshed ensured that only healthcare officials have access and

every 15 minutes. 35 By contrast, Aarogya Setu maximizes accountability; in Singapore the Ministry of Health is

rather than minimizes the data it collects. The app not only responsible for the data processing. 40

collects both Bluetooth data and tracks users? location

Another observable approach is to limit the app?s purpose

information, but according to its privacy policy, tags this

by design: instead of centralizing data on government

personal information with a unique ?static? ID and uploads

servers, the European Parliament has recommended a

it to a centralized government server, making it relatively

decentralized approach. The EU?s Decentralised

easy for the user to be reidentified. 36 As an ironic case in

Privacy-Preserving Proximity Tracing (DP3T) protocol,

point, French ?ethical hacker? Robert Baptiste could

34. Ibid., 25.

35. Ibid., 78.

36. Mukul, ?Fighting COVID.?

37. Yuthika Bhargava, ?Hacker 'Sees' Security Flaws in Aarogya Setu,? The Hindu, May 7, 2020, https://www.thehindu.com/news/national/ethical

-hacker-robert-baptiste-elliot-alderson-sees-security-flaws-in-aarogya-setu/article31515292.

38. Deb, 62.

39. Ahmed Baladi et al., ?European Perspective on Tracing Tools in the Context of COVID-19,? Gibson Dunn, April 28, 2020, 4.

40. Cho et al., ?Privacy Considerations,? 3.


81

issued on April 3, calls for the data to be kept locally on

user?s phones? in this way informing users on their

relative risk of infection without granting the government

oversight. 41 42 As this approach allows users to voluntarily

opt to share their information, decentralization could

potentially minimize the risk of purpose overreach from

the government. 43

Aarogya Setu?s stated purpose and its current regulation,

meanwhile, are difficult to reconcile in the context of

purpose limitation. While the membership of the board

elected to govern the data processing has not been formally

published, unofficial reports reveal that no seats are held

by healthcare officials, unlike Singapore. 44 This lack of

health experts in itself invites skepticism as to the usage of

the data, but also raises concerns as to how accessible the

data is for third parties? if all of the seats are occupied by

government officials, could the data be shared between

government agencies, or with law enforcement? While

TraceTogether?s privacy policy specifically outlines

limitations on third-party access (the private key to the

temporary IDs exchanged between phones is solely held

by the Ministry of Health, making it impossible for third

parties to decrypt them), Aarogya Setu?s privacy policy sets

this in vague terms, and does not rule out


intra-governmental sharing. 45 46 The Indian police?s use of

facial recognition technology to identify 1,100 individuals

in communal riots in February 2020, and suspected abuse

of data leaks that may have helped mobs identify Muslim

targets, set a dangerous precedent for data sharing with law

enforcement.

47 48

The fact that billionaire industrialists such as Ratan Tata

and Anand Mahindra were on the initial committee

delegated to develop the app also does not quiet concerns

that the data could be used for commercial ends, nor those

of the risk of scope creep? when multiple parties add

functions that are not relevant to the app?s stated aim. 49

Indeed, a plea to the Delhi High Court against the app?s

e-pharmacies function has already been filed by a

pharmacists? association for excluding local, offline

pharmacies in a ?highly illegal, arbitrary and

discriminatory manner.? 50

Consent

Ensuring that contact tracing apps are voluntary has been a

key feature of several states? contact tracing approaches.

According to the MIT Covid Tracing Tracker, among the

25 countries with government apps, only China, South

Korea, and Turkey have made their apps fully mandatory. 51

41. Javier Espinoza, ?How Europe Splintered over Contact Tracing Apps,? Financial Times, May 10, 2020, https://www.ft.com/content/

7416269b-0477-4a29-815d-7e4ee8100c10.

42. Ahmed Baladi et al., ?European Perspective,? 5.

43. Ibid., 5.

44. Deb, 60.

45. Ibid., 28.

46. Anurag Mehra,?Will Bluetooth and Aarogya Setu Allow Us to Safely Exit the COVID-19 Lockdown?? The Wire, April 29, 2020,

https://thewire.in/tech/bluetooth-aarogya-setu-covid-19.

47. Manish Singh, ?India Used Facial Recognition Tech to Identify 1,100 Individuals at a Recent Riot,? TechCrunch, March 11, 2020,

https://techcrunch.com/2020/03/11/india-used-facial-recognition-tech-to-identify-1100-individuals-at-a-recent-riot/.

48. Sreemoyee Mukherjee, ?How Poor Data Protection Can Endanger Communities During Communal Riots,? The Wire, March 6, 2020,

https://thewire.in/rights/vahan-database-protection-riots.

49. Deb, 40.

50. Pti, ?High Court Seeks Centre's Reply on Plea to De-Link Aarogya Setu App from Website Promoting e-Pharmacies,? Economic Times, May 14,

2020, https://economictimes.indiatimes.com/news/politics-and-nation/high-court-seeks-centres-reply-on-plea-to-de-link-aarogya-setu-app-fromwebsite-promoting-e-pharmacies/articleshow/75738814.cms.

51. O?Neill et al., ?Flood.?


82


Empowering user consent falls in line with the updated impossible. Even assuming the lower bar set by the experts

privacy recommendations of the European Parliament in at NIC who built Aarogya Setu, who suggested that at least

light of COVID-19, which stress that making the apps 50% of Indians must download the app for it to be

mandatory could lead to discriminatory legal action against effective, the fact remains that smartphone users only

users should they be unable to comply. 52 Several countries constitute one-third of India?s 1.4 billion population. 56

have also applied this principle of consent to how long the While this discrepancy invites suspicions that the app was

data is stored. Australia allows COVIDSafe users to ?set up to fail,? as the Internet Freedom Foundation?s (IFF)

request the deletion of all data and identifiers held on their whitepaper suggests, this raises the question of whether the

servers, effectively anonymizing any traces of data that app might become mandatory in order to meet its target. 57

one?s phone has exchanged with others. 53

If that is the case, what would the repercussions of this

kind of revocation of consent be? Answering this question

Yet despite the prevalence of voluntary models, whether or

has recently become easier: the app is undergoing

not contact tracing apps should be consensual has still been

piece-meal mandatory enforcement, as many had

subject to heated debate. According to researchers at

anticipated. As of May 1, the GOI made Aarogya Setu

Oxford University, to be effective, contact tracing apps

need to be downloaded by around 60% of the population. 54 mandatory for all public and private employees, with heads

of businesses responsible for ensuring ?100% coverage of

This sets a very high bar: even in the best-case scenario

this app among employees.?

(e.g., countries with extensive smartphone penetration and

58 Four days later, inhabitants

of Noida, a suburb of Delhi, were required to download the

high trust in government, such as Singapore), low levels of

app, with legal proceedings imminent if they do not

app take-up have been observed. According to Reuters,

comply.

even when case numbers in Singapore rose upwards of

59 When partial train services were restored after

50 days of national lockdown, the app was made

9,000 (from the initial figure of 385 when TraceTogether

obligatory for passengers to board.

was first introduced), only 1 in 5 people downloaded the

60 Should the app

voluntary app. 55 become a ?health passport? required to cross state or

Despite India?s high level of trust in

neighborhood boundaries, as with China's mandatory

government, meeting this threshold is still practically

52. ?Guidelines 04/2020 on the use of location data and contact tracing tools in the context of the COVID-19,? European Data Protection Board,

April 21, 2020, 7.

53. Australian Government Department of Health, ?COVIDSafe App,? Australian Government Department of Health, May 13, 2020,

https://www.health.gov.au/resources/apps-and-tools/covidsafe-app.

54. "Digital Contact Tracing Can Slow or Even Stop Coronavirus Transmission and Ease Us out of Lockdown,? University of Oxford, April 16,

2020, https://www.research.ox.ac.uk/Article/2020-04-16-digital-contact-tracing-can-slow-or-even-stop-coronavirus-transmission-and-ease-us-out-oflockdown.

55. Aradhana Aravindan and Sankalp Phartiyal, ?Bluetooth Phone Apps for Tracking COVID-19 Show Modest Early Results,? Reuters, April 21,

2020, https://www.reuters.com/article/us-health-coronavirus-apps/bluetooth-phone-apps-for-tracking-covid-19-show-modest-early

-results-idUSKCN2232A0.

56. Deb, 59.

57. Ibid.

58. Trisha Jalan, ?Noida Police Mandates Downloading of Aarogya Setu: Report,? MediaNama, May 5, 2020.

59. Sushovan Sircar. ?Noida Locals Protest Aarogya Setu Order, Cops Seek Legal Advice,? The Quint, May 13, 2020,

https://www.thequint.com/news/india/aarogya-setu-app-noida-police-seeks-legal-advise-gautam-buddh-nagar-noida-challenge-mandatory-use.

60. Sangeeta Ojha, ?Railways Makes Aarogya Setu Mobile App Mandatory to Travel in Special AC Trains,? Livemint, May 12, 2020,

https://www.livemint.com/news/india/railways-makes-aarogya-setu-mobile-app-mandatory-to-travel-in-special-ac-trains-11589261571351.html.


83


Alipay Health app, the potential for exclusion and Recommendations

discrimination is great. 61 Only 16% of women in India

Implement a specific law with provisions for data

have access to or use mobile phone internet, while densely

processing

populated states like Orissa and Bihar have scant

smartphone internet penetration. 62 In attempting to

maximize the potential effectiveness of contact tracing in

this way, fundamental rights could come to be only offered

to those with the app.? 63

For the app to comply with the Puttaswamy principle of

legality, an appropriate law should be drafted. A natural

concern with this suggestion is that the law itself would

simply mandate the app?s disproportionate privacy

infringements. However, the drafting of what legal scholar

Discussion

As it is currently regulated, Aarogya Setu represents a

disproportionate breach of the right to privacy during the

COVID-19 pandemic. In comparison with contact tracing

apps implemented by other countries, it has fewer checks

on purpose limitation and data minimization, and does not

Gautam Bhatia has dubbed a ?hypothetical ?Aarogya Setu

law?? would involve parliamentary and constitutional

oversight, and allow for an ?informed challenge? of the

app in court. By being forced to align with the Puttaswamy

judgement, the law would be able to mandate the

proportionate involvement of private actors. There is

comply with data protection principles regarding sufficient precedent to conclude that this could limit the

transparency and consent as outlined in the PDPB and the

GDPR. Such omissions leave the path open to excessive

government surveillance as well as the interference of third

parties, whether they be commercial private actors or

hackers. Moreover, in the absence of a specific law

governing the app?s data processing, it fails the initial

principle of legality required to justify the intrusion of

privacy, as set forward in the Puttaswamy judgement.

Should the app become fully mandatory, these violations

app?s overreach: in 2017, when the government tried to

link national ?Aadhar? IDs? India?s voluntary national

identification scheme? with biometric data by passing the

Aadhar Act, segments of the act were struck down by the

Supreme Court for being unconstitutional. 65

Share details of the public-private partnership openly

Publicizing details of the app?s private partners would

allow users to grant informed consent and hold such

of data protection principles could lead to an

partners accountable should the data be leaked.

unprecedented degree of government surveillance and Implement proportionality by design

discrimination against those who are unable, or refuse, to

Doing away with the static identifiers attached to users'

comply. In light of this debate, I therefore provide a

data and instead using dynamic IDs updated at regular

number of recommendations for the regulation of Aarogya

intervals would minimize the potential for third parties to

Setu.

re-identify users and access their health information. Given

61. Paul Mozur et al., ?In Coronavirus Fight, China Gives Citizens a Color Code, With Red Flags,? New York Times, March 2, 2020,

https://www.nytimes.com/2020/03/01/business/china-coronavirus-surveillance.html.

62. Aroon Deep, ?#NAMA: Aarogya Setu's Privacy Risks and Challenges to Effectiveness,? MediaNama, April 21, 2020,

https://www.medianama.com/2020/04/223-nama-aarogya-setus-privacy-risks-and-effectiveness-challenges/.

63. Aditi Agrawal, ?Resolution Passed in European Parliament Demanding Transparency on Contact Tracing Apps; Lessons for Aarogya Setu,?

MediaNama, April 21, 2020, https://www.medianama.com/2020/04/223-bill-in-european-parliament-demands-transparency-on-contact-tracing

-apps-lessons-for-aarogya-setu/.

64. Gautam Bhatia, ?The Mandatory Imposition of the Aarogya Setu App Has No Legal or Constitutional Basis,? The Wire, May 4, 2020,

https://thewire.in/law/the-mandatory-imposition-of-the-aarogya-setu-app-has-no-legal-or-constitutional-basis.

65. Ibid.


84


that geographic location data is not only unnecessary, but

also increases the risk of user reidentification, the app

should only utilise Bluetooth proximity data. Though there

is utility for health workers in identifying where necessary

resources could be deployed, this is currently beyond the

apps?stated purpose, and therefore violates the necessity

principle. Decentralization, though on its own might not

protect user?s data from unauthorized third parties, could

enhance the app?s purpose limitation by protecting it from

intra-governmental sharing with law enforcement? which

enforcement suggests that such an approach would have

limited impact in India.

Conclusion

India today not only faces a steep challenge to the health of

its people, but also to the health and survival of Indians?

fundamental rights. While the need for efficient contact

tracing, and hence a degree of privacy intrusion, during the

COVID-19 pandemic is understandably significant, it

appears that Aarogya Setu, in both its design and

appears to be beyond the will of the Indian state.

regulation, currently represents a disproportionate

infringement of users' privacy. The GOI must ensure that

Establish a national data protection authority (DPA)

Granting a national data protection authority (DPA)

oversight over the app?s data processing, as in the EU,

could compel the app?s developers to abide by principles

of data minimization and purpose limitation. Making the

DPA independent and formed by a coalition of elected

legal scholars and technologists could also address the

dearth of medical personnel manning the current oversight

committee. However, according to Member of Parliament

Amar Patnaik, who is on the Joint Parliamentary

Committee considering the PDPB, there is a significant

?lack of independence among Indian statutory authorities?,

which can be overturned by a single legislative vote. 66 As

such, instituting a DPA without guaranteeing its financial

and legislative independence from the central government

could do more harm than good. Instituting the DPA as a

constitutional rather than a statutory body could be more

beneficial, as withdrawing constitutional authorities in

India requires constitutional amendments be made, which

constrains the influence of the executive.

Keep the app voluntary

Given India?s demographic constraints, maintaining the

initial, consensual model of the app would minimize the

potential for user discrimination. While this voluntary

model might not allow for the app to be a fully effective

responses to the current health crisis, such as Aarogya

Setu, do not institute long-term damage to India?s

democracy, as well as unchecked power imbalances. To do

so, and to meet the threshold for effective contact tracing,

the GOI must address the privacy concerns within Aarogya

Setu. The examples and recommendations outlined in this

paper provide a starting point in this regard. By

considering the design and regulation of contact tracing

apps in other countries, it recommends best-practice

methods to facilitate Aarogya Setu?s compliance with the

principles of legality, proportionality, and necessity. Of

immediate concern is the dearth of legal provisions

surrounding data privacy. Ensuring that the data processing

of the app is legal and that those with access are held to

account will first require legislative action and the

institution of an independent and constitutional monitoring

authority. That the app remains voluntary -- a prospect that

is by no means assured in India at the moment -- will also

require government regulation. However, such central

government measures will not be enough to address the

app?s disproportionate infringement of data privacy on

their own: the app?s developers at National Informatics

Centre (NIC) and Ministry of Electronics and Information

Technology (MeiTY) will also have to revisit the design of

the app to bring it in line with best-practice principles such

as data minimization and purpose limitation.

contact tracing tool, the impracticality of mandatory

66. MediaNama editor@medianama.com and MediaNama, ?Interview: 'Data Protection Authority Should Be Truly Independent', Says MP Amar

Patnaik,? MediaNama, April 15, 2020, https://www.medianama.com/2020/04/223-amar-patnaik-mp-interview-data-protection-bill/.


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