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The Limits of Law: Cases

We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):

Tatiana Borisova

The major question of my book is how new, or supposedly new agenda of legality and justice emerged in the late imperial Russia. I explore rapid modernisation of ideas about law and justice and judicial practices which was a part of more general European‘revolution in government’ resulting from 1848 revolutions. Through analysis of several criminal trials, which the contemporaries considered to be political, not actually criminal, I study the emancipatory potential of new judicial practices and moral discourses involved. Indeed, in 1860s-1870s my protagonists believed that the implementation of new procedures would guarantee that fair trial would bring freedom and dignity. This hope ended up in shocking acquittals of assassins who attempted lives of the most mighty imperial administrators. Did the merciful jurors reinforce the social contract challenged by terror? Or, on the contrary, did they put forward war and violence?
               Tensions between law, legitimised violence, and arbitrary violence were underlined by Anatolii Fedorovich Koni (1844-1927), prominent Russian jurist, who was a presiding judge when Vera Zasulich was famously acquitted in 1878 after her unsuccessful attempt on governor of St-Petersburg Trepov. Koni stressed:

Since the jury recognized the fact that violence on one side (from the public authorities) did not authorize violence on the other side (from the subjects), the court had every reason to emphasize the first act of violence, to underscore its moral effects. ... The court’s verdict – firm and detailed – would have demonstrated to our sovereign how shamelessly the tsar’s officials had been exceeding the limits of legality and trampling personal dignity.

Indeed, the Great reforms of 1860s-1870s were to promote new legal boundaries between state, subject, and society. However, in practice, all the categories were in flux, and new courts became arenas of struggle for these boundaries. This struggle finally took a form of three revolutions of 1905-1917.
               Interestingly, Koni wrote his memoirs on Zasulich trial in the time of the first Russian revolution, but disappointed by the growing level of violence, did not publish it. After the Soviets seized power in 1917, and Zasulich was a celebrated revolutionary heroine, Koni was still reluctant to publish his memoirs. Red terror pushed the legitimised violence of the new state to the extremes. The message of Koni’s memoir about power of courts to reestablish social contract and guarantee people’s rights and dignity was again untimely. Since then, the boundaries of legality in terms of allocation of power and violence has been too sensitive to be challenged by courts. Open discussion about them has been something already challenging the boundaries of legality, as recent political developments confirm.
               I have been extremely lucky to be a part of Davis Centre this year.  I have met great colleagues whose research tests conventional boundaries of law and legality. Here, I found the most fascinating to observe that, despite Davis Fellows are dealing with very different historical contexts, there are remarkable similarities of the issues we are interested in.  George Aumoithe, Angela Creager, and Franziska Seraphim problematise normative evaluation of written law and procedural justice as either ‘success’ or ‘failure.’ Jon Connolly, Tom Johnson, Lena Salaymeh, reminded us of normativity of legal field, that makes interdisciplinary research in law and legalities methodologically challenging and still not conventionally ‘legitimate’ in practice. Mitra Sharafi, Liz Thornberry, Natasha Weatley, Barbara Welke deal with temporal regimes of law and memory, be it contested memories of imperial legal discourses, or traumatic memories that lawsuits failed to heal.
               Quentin Skinner once observed that ‘one of present values of the past is as a repository of values we no longer endorse, of questions we no longer ask.’ It does not seem to be entirely true about legal history, though. Especially, if we deal with social dimension of law, which is too important to be run and studied exclusively by lawyers and policy-makers.

During my semester at the Davis Center, I followed the debate between adversarialism and inquisitorialism—usually a contest we think of between common-law and Roman-law-based systems in Europe and the Americas—to colonial India. My focus was on scientific experts, and how inquisitorial mechanics for the processing of lab experts’ findings were introduced in British India. Was adversarialism at odds with the scientific quest for truth? Did inquisitorialism threaten the due process rights of criminal defendants? Like Angela Creager, I am interested in what happened when law and science met, bringing into contact their distinctive priorities, histories, and conceptions of what constituted evidence.

And what difference did colonialism make? Like Jon Connolly and Liz Thornberry, I am tracing law and legalities in a British imperial setting. Davis Center conversations helped me explore assumptions driven by this colonial context, like the belief in “native mendacity” and the quest to make western science seem clear, coherent and consistent for an audience of colonized subjects. Historians of South Asia often treat the rule of law as the handmaiden of colonialism, but debates over adversarialism revealed that the rule-of-law agenda (as a set of ideals, not practices) and colonial rule were distinct projects that at times came into direct conflict with each other. For instance, a 1930s High Court judge named Douglas Young put up considerable resistance to a distinctively colonial provision of criminal procedure that endangered defendants' right to a fair trial. He pressed for the rule of law against the fact that this provision facilitated colonialism. In my story, it was the politics of empire that imposed limits on law.

Writing a book about rape forced me into an extended confrontation with the limits of law’s power.  In both 19th century South Africa (the site of my research) and in 21st century America (where I live and work), law has seemed powerless to prevent rape, as well as inadequate in responding to it.  Extremely low rates of conviction for sexual offenses provide the most obvious index of this inadequacy—but the constant reference to this measurement is another.  No outcome of the criminal legal system has the power to undo the trauma so often produced by sexual violence. 
While researching my book, I attended a conference sponsored by an international feminist NGO.  The keynote speaker was a South African prosecutor, well known for successfully prosecuting sexual assault.  Her speech noted both the difficulty of prosecution, and its inadequacy. She proposed preventative measures: municipalities should distribute locks in informal settlements, so that women could protect themselves and their children. Listening, I was struck by the limits of this vision. We cannot imagine a world in which men do not try to rape, only one in which women can lock their doors against rapists.
Conversations at the Davis Center this year have convinced me that these limits are one of law’s constitutive dilemmas.  Rape is notoriously difficult to prove in criminal courts—but no more, it turns out, than carcinogenicity.  And if law cannot undo rape, how can the legal systems that Franziska Seraphim explores possibly offer meaningful responses to genocide?  Yet these comparisons also illustrate the degree to which these limits are characteristic of the specific history of European law, which arrived in North American and Southern Africa as part of a violent process of colonialism.  In the precolonial territories that would become South Africa, women who said they had been raped were generally assumed to be telling the truth.  Punishment for sexual violence took the form of compensation payments, which in turn could enable healing through sacrifices to the ancestors.  I do not want to romanticize the precolonial era, which licensed its own violations of sexual autonomy, particularly within marriage; but precolonial law offered possibilities for addressing rape that have not been adequately replaced. 
In the contemporary moment, anti-rape activists on college campuses use arguments based in Title IX to pressure universities not only to offer their own forms of adjudication and redress but also to try to prevent rape, through bystander intervention trainings and other efforts to change cultural norms related to sexuality.  Yet the difficulties of this movement illuminate, I think, the limits of law, at least as we have inherited it. Victim advocates argue with defenders of the due-process rights of those accused of rape.  Efforts to change ‘rape culture’ are urgent, but the example of corporate sexual harassment training suggests that legal mandates for consciousness-raising are not particularly effective.  Perhaps this is evidence that, as Lena Salaymeh has persistently reminded us this year, law remains in urgent need of decolonization.  I don’t think we can return to the precolonial past, whatever its merits; but at minimum, its history can remind us that there are other ways of imagining the world, including law.  

In line with our theme “law and legalities,” I am rethinking the Allied war crimes trial program after World War II in terms of geolegalities, which calls attention, according to Michael Smith, to “practices, processes, and discourses involved in both the worlding of rules and the ruling of worlds.” My legal geography maps out the spatial constitutiveness of “globalizing” (international) criminal and humanitarian law and the reordering of the postwar world in the late 1940s and 1950s: 18 countries convened predominantly military international, national, and colonial courts in 226 locations across Europe and the Asia-Pacific, holding thousands of individuals criminally responsible for the brutal conduct of war and military occupation by Nazi Germany and imperial Japan.
On this global map of Allied-induced justice, I locate and ultimately foreground legal spaces that involved “the judged” as surprisingly active participants in this war crimes program, from those serving sentences in prisons and the local communities hosting those prisons, to Japanese and German leaders eager to mend the social fabric and reestablish national sovereignty. Making the perpetrators visible--and making them disappear again with their release and even rehabilitation--was more than a (Cold War determined) historical development that stretched into the late 1950s; it also drew upon geolegalities on different scales, through which I tease out often unexpected commonalities and enduring differences that go well beyond the enduring polarities that tend to frame this history--between the victors on the side of justice and the vanquished denying their guilt, or the”success” of transitional justice in Germany versus its “failure” in Japan, or more simply Europe and Asia. The ongoing weekly gatherings and discussions with the Davis Center community helped me develop a new conceptual vocabulary to bring some order into the messiness to which I had opened myself, not least through the culture of active and supportive listening that flourishes here.

We live in a contaminated biosphere whose future is further threatened by climate change. In the US, federal law has been a relatively weak instrument to reverse these worrisome developments. Why has environmental law, an area of widespread popular engagement and legal activity, met with such limited success in the last half century? Corporate money? Special interests? Neoliberalism? These usual villains are not innocent, but I am interested here in how companies and their lobbyists used provisions of law, namely the 1948 Administrative Procedures Act (APA), to thwart stronger regulation. As Dirk Hartog and this year’s Davis Center fellows have helped me see, this is a common feature of law.[1] 
My focus has been the Toxic Substances Control Act (TSCA) of 1976.[2]This was the first US law aimed at providing environmental and health oversight of all commercial chemicals. The act was introduced in 1971 as part of the Nixon administration’s environmental initiatives, and different versions of the bill passed both houses by the fall of 1972, only to die in Senate-House Conference Committee during the 92nd session of Congress. In 1974, amidst the Watergate scandal and Nixon’s resignation, the Senate and House of Representatives again passed different versions of TSCA. Once again, the legislation died in committee. Early on, it appeared that none of the bills would not become law, a simple solution for its opponents.
In July 1975, a scandal reignited political pressure for chemicals regulation. Dozens of workers at chemical factory in Virginia were poisoned through their exposure to Kepone, a neurotoxic pesticide manufactured in the plant. The Ford administration made it clear that some version of TSCA needed to be signed into law to appease political pressure. Representatives for the Manufacturing Chemists Association (MCA), a trade group representing the chemical industry, began hammering out the details of a bill with Congressional staffers. The final statute specified numerous procedural hurdles for EPA in fulfilling its mandate to regulate chemicals. These hurdles were not conceptual slipups, but compromises made to produce a bill acceptable to industry. James T. O’Reilly, an industry lawyer who actually helped write the provisions, has said: “The 1976 Toxic Substances Control Act (TSCA) contains such obscure and inconsistent phrases that its supporters were doomed to frustration.”[3]The legal scholar Kevin Gaynor, who analyzed the law shortly after it was enacted, called it “a regulatory morass.” Even its provisions “ensuring transparency of safety data” became “rigid procedural handcuffs.”[4]This was a statute designed to make industry oversight difficult.
Many of these complexities had to do with how TSCA addressed requirements of the APA. For example, rather than make toxicity testing of commercial chemicals required for either old or new chemicals, the bill stipulated that EPA would have to issue a rule to require testing of any individual substance. Requiring rule-making on a chemical-by-chemical basis meant that the agency could only request testing data on a limited number of commercial chemicals, of the 60,000 on the market and thousands added each year.
To be sure, not all of the EPA’s challenges in fulfilling its mandate in TSCA related to how the bill was worded; court decisions also played a part, especially the 1991 invalidation of the agency’s asbestos ban by the US Court of Appeals. But US laws aimed at protecting the environment are often more quietly checked at the mundane level of administrative procedure.

The space between what is intentionally written into law, what is construed as lawful, and what is accepted as just remains central to contemporary legal history. My work examines the administrative apparatus that underpinned governmental regulation of public health, curative medicine, and the welfare state in the latter-20thcentury United States. Much like Angela Creager’s engagement with statutory law, legislative history, and regulatory scandal, my research examines the regulation of public hospitals, Medicaid, and its attendant controversies.
My book project, tentatively titled Strange Bedfellows: Hospitals, Public Health, and Welfare Politics in the United States, looks beyond statutes and cases toward the “exogenous” forces that shaped healthcare. Insurance, pharmaceuticals, and the tensions between corporatism and charity prefigure as ancillary law-making spaces. Black, Latinx, and working-class people in American cities understood—more intimately than the state ever could—how much the public relied on robust public healthcare . I focus on one salient site: the public’s fight to prevent the dismantling of “safety-net” hospitals and its transformation in the postindustrial 1970s and AIDS crisis of the 1980s—present. Political economy shaped the resources at hand to respond to the epidemic just as much as racist, homoantagonistic, and xenophobic discourses did.
Much like Franziska Seraphim elaborates an archipelago of justice, my project looks at the conflictual jurisdictions of public health, healthcare, and welfare state law after Medicaid. These three domains of law collided in public hospitals and publicly-funded private facilities. For example, fiscal crisis in New York City constrained more expansive Great Society policies. In response to federal dictates, the state and city enacted hospital closures at the same time that more workers transitioned into medical services.
A year examining the limits of the law challenges methods that exclusively examine statutes and cases. In my work, social movements from the NAACP Legal Defense Fund (LDF) to the AIDS Coalition to Unleash Power organized cases of discrimination for the courts and administrative agencies, which expanded access to hospitals, federal health insurance, clinical trials, and drug assistance programs. LDF effectively eliminated de jure forms of segregation in hospitals. Cases like Simkins v. Moses H. Cone Memorial Hospital in 1963 found state action in segregated hospitals that received federal funding—before the Civil Rights Act of 1964. This case, however, represented the low-hanging fruit of early desegregation.
Fights to resolve uncertainties stemming from the uneven elimination of de facto segregation proved more tenacious. In the 1970s, courts became less sympathetic to statistical demonstrations of adverse impact. Following anti-inflationary policy and conservative counter-reactions to the Great Society, courts began to deny plaintiff-patient claims of de facto economic (and racialized) segregation in the North. Cases like Bryan v. Koch about Harlem’s Sydenham Hospital closure and NAACP v. Wilmington Medical Center, Inc. about suburban relocation of an inner-city Delaware hospital demanded proof of discriminatory intent. Even if disparate impact was demonstrated, putatively neutral municipal policy emerged unscathed.
The social and economic context of law-making is a vital matter. Some have done so by examining the connections between orality, tradition, and custom. Others have shown how capitalists racialized categories of difference to coerce indentured labor post-emancipation. Encountering my colleagues’ approaches has alighted my imagination. Similar dynamics apply to the uneven access to legal protection for disparately impacted groups in healthcare policy.

 Photo (L to R): Tom Johnson, Lena Salaymeh, George Aumoithe, Liz Thornberry, Natasha Wheatley, Barbara Welke, Mitra Sharafi, Franziska Seraphim, Jon Connolly

 (posted by Mitra Sharafi)

[1] And certainly not specific to environmental law; see Lee Vinsel,“Designing to the Test: Performance Standards and Technological Change in the US Automobile after 1966,” Technology and Culture 56 (2015): 868–894.
[2] In response to the enactment of the Registration, Evaluation, Authorisation and Restriction of Chemicals, enacted by the European Union in 2006, TSCA was overhauled under the Obama Administration in 2016. However, the subsequent election of Donald Trump as President has changed the course of implementatingh of what was expected to be more precautionary chemicals regulation by the Environmental Protection Agency.
[3] James T. O’Reilly, “Torture by TSCA: Retrospectives of a Failed Statute,” Natural Resources & Environment 25 (2010): 43–44 and 47, on 43.
[4] Kevin Gaynor, “The Toxic Substances Control Act:  A Regulatory Morass,” Vanderbilt Law Review 30 (1977): 1149–1196, on 1151.

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