Going Slow and Social Justice

Watching Justice Ruth Bader Ginsburg of the US Supreme Court interviewing on C-Span made me think of the thin line between adjudicating a dispute and adjudicating a social problem. One of the questions the moderator addressed to Justice Ginsburg was about the effect the Supreme Court's ruling had on society, and Justice Ginsburg answered that the court should always be careful not to make wide ranging rulings before it knows what other cases are out there. As an example, she mentioned a series of cases from the 1970's in which the Supreme Court declared that women are a 'suspicious classification', to which greater protection is given. She said that when the Chief Justice decided that his opinion is going to make this statement she felt as if the court still doesn't know enough about "what's out there" and that it should wait at least for 7 or 8 more cases before reaching that conclusion. One or two cases, according to her, were simply not enough to learn the territory well enough to make a decision that's wider than the case at bar itself. It was "too soon" (that's the term she used) to know how women are treated in the workplace and other environments, for the court to be making new rules that would apply to all women, rather than just the specific women that choose to approach the court with their case. While the court can easily study the facts of the single case in front of it through looking into evidence and listening to witnesses, it is not so well equipped to learn about society in general and implement policies that strife to make big changes.

I'm not sure how much I agree to this approach. At first glance, it's true - the courts (perhaps as opposed to a parliament) don't know "what's out there." The court's knowledge of society is limited to what the parties choose to bring before it, and everything it learns is in relation to the specific event that is adjudicated at that time. One could see how this would require a restraint decision, that would not exceed the limits set on the court by its own procedure. But Justice Ginsburg's approach seems to ignore two major factors: the first is the effect a single case has on society even when it does not include general statements; and the second is the effect this approach has on the particular litigants bringing their case before the court.

A court's decision on socially or politically important matters has an effect bigger than the case itself. Interesting verdicts are usually reported in the news, and many times inaccurately. The media, always looking for the story, would not go into the legal details that makes the legal decision applicable only to the one specific case that was decided. On the contrary, in order to make every report more interesting, it's more likely that the general sides of every decision would receive much greater attention. If that's true, while, on a legal level, the verdict remains particular and the court remains socially cautious, on a public level the verdict received a widespread effect nonetheless. It seems to me that Justice Ginsburg, in this sense, thinks in concepts of social effects that are somewhat outdated.

In addition, on not less important, Justice Ginsburg's approach has an effect over the particular parties depending on the court's ruling and their incentives. If, for instance, the court refrains from ruling the women are a 'suspicious classification' until it had heard several cases leading to that result, it means that the first woman to bring her discrimination case before the court would be treated differently than the seventh or tenth woman to do so. While in later cases women would enjoy the benefits of being recognized as a group that is likely to be discriminated against, and therefore need to prove much less in order to win their case, the first woman to approach the court would not enjoy those benefits. In fact, she is much more likely to loose than they are. This seems to be problematic both on a particular level and on a social level. On a particular level, the courts, that are supposed to treat all similar cases equally, treats similar cases differently just because one preceded the other. That goes against everything the common law system stands for. On a social level, this result prevents change from happening, by creating an incentive for people who feel that their rights have been breached to wait until someone else brings their suit first. Since people are more likely to win their case if they come later in line, there is no reason for anyone to be first. That way, in stead of promoting a more just society through correction of social injustices, the court seems to promote status quo, in which disenfranchised groups are deprived their rights.

Face, Race, and Impartiality

(I came to thinking about the following issue after reading the Goldstone report, but thoughts of this sort are running through my mind for quite some time now. I'm casting this stone into the cyber pond in hope that maybe someone would have something to add. As you will see, this is all just a beginning of a thought with no conclusion.)

The Goldstone report was issued by the committee of the Human Rights Council appointed to investigate human rights violations during the Israeli operation in the Gaza Strip in December 2008 and January '09. Among many other points regarding both sides to the conflict, the committee noted with concern that "[o]f protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial."
This conclusion seems to fit in well with my little experience with the Israeli system. To be clear, I have never seen or heard of a case in which a judge has intentionally or knowingly discriminated against a Palestinian Israeli brought before him. Not even close. However, unintentional and unconscious discrimination is quite clearly taking place.
The Israeli detention procedure is one of the most liberal detention processes that I know of. The police has the right to hold a person for detention only for a very limited number of reasons, and such a person must be brought before a judge or released within 24 hours from the time of the detention. Once a hearing is held, the judge may extend the detention only if the detainee is dangerous to his surroundings or the public in general, if he is likely to flee before his trial, or for special investigatory purposes.
Now, since the trial has not yet begun, the judge in the hearing is confronted with preliminary evidence provided by the prosecution, and an alternate explanation provided by the defense. After hearing both sides the judge must decide whether one of the reasons for detentions mentioned above applies, or whether the detainee can be released (either to house arrest or with no limiting conditions). Without conducting the survey, it seems to me that the most common reason used for prolonging of detention periods is that the detainee is that of the 'assumption of dangerousness'.
And here's the tricky part: more than one research show, that judges tend to assume that persons of similar background as their are less dangerous than those unknown to them. To (over)simplify the argument, a judge that sees a detainee with a similar background to hers feels as if she can understand his motives and tends to judge him less severely. persons of other backgrounds are usually less empathized with and portrayed according to racial/cultural stereotypes. Obviously, this is not something that's unique to the Israeli detention procedure. The research I linked above was conducted in the USA with regards to whites, blacks and Koreans, and the same problem can be shown to exists in any multicultural state around the globe.
Yet this issue becomes more crucial in legal procedures that are based almost solely on the judge's assessment of the facts, made in order to evaluate how dangerous the detainee is. It's as if cultural and racial minorities don't stand a chance in such a procedure, and there aren't many safeguards to protect them from such inequality.

I don't have a solution to this problem. Decisions regarding detentions are and should be made quickly, based on minimal amount of evidence, and without a substantial amount of litigation or witnesses. Even appointing more justices of minority backgrounds, a desired target in and of itself, might change the general statistics, but not solve the matter of any particular detainee. For such a detainee it would still be a matter of chance, whether he will or will not be lucky enough to have his case heard by a judge of a similar background. Since the appointment of judges for cases is arbitrary, there is no reassurance for a fair trial, not in the sense of the outcome nor in the sense of equal process.
So maybe what I wanted to say is just that these kinds of statements in human rights reports always seem to me to be the most disturbing. The way I see it, the army, the police, the government, the parliament, they can always go wrong, as they all have an intrinsic amount of violence in them. But the judicial system - that is the last frontier, meant to always raise a red flag against inequality and discrimination; protect the individual against the stronger powers of institutions. I guess it's just saddening to realize that the legal system can be tainted by inequality as well.


and here, not completely related, but what seems like a sincere expression of feelings and similar concerns of an African-American father.

On Facebook and Issues of Nationality

If you have a Facebook account (of course you do, who doesn't?) then you must know that in order to set up your account you must choose which social networks you are interested in joining. Now, the primary network anyone usually connects herself to is a regional network, and that is usually the city, the state, or the country one lives in. This has an effect on the profiles you gain access to, and those who gain access to your profile (usually, most profiles are set to allow viewing only by other people of the same network).
Interestingly, one can only be a member of one regional network at any given time. That means that I, as an Israeli student abroad, must affiliate myself either as in Israeli or as a New Yorker. For Facebook, I can't be both, but have to renounce one identity in order to adopt the other. You might say that I am an exception to the rule, and that most people live in one place, and have no need in access and affiliation with any social networks on the other side of the world. I'm sure that's less and less true with each year, but anyway, that's only half the point.

The other half is that some areas of the world simply don't follow the rule of such simple social/national connection. For example: Israel (surprise surprise). Lately, it appeared in the news that Facebook changed its regions database so that Israeli settlers in the West Bank would be able to list themselves as members of the Israeli social network, although they live outside the official borders of the state of Israel. In addition, Alquds Alarabi published a report today, stating that Syria will launch a campaign demanding a boycott of Facebook because it permits Israelis living on the Golan Heights to list themselves as Israelis (and here it is in English). And I can only guess that the same problems arise (in different magnitude, perhaps) in other areas of the world such as Tibet, Northern Ireland, or Quebec.

The thing is, that Facebook's networks are not about defining political borders and group nationalities. They are about an individual's social group - the individual who owns the account. When dealing with such an individual's nationality, applying geographical concepts starts to seem a little ridiculous. I mean, in the "real" world of facts of buildings and roads and electricity services, a city or a region can be a part of only one state, although sometimes which state that region is a part of is debatable. A person, however, can identify as belonging to more than one regional group. An ex-patriot would want to be a part of regional networks of both the the place he comes from and the place he is in now. Quite similarly, people living in places currently in political dispute would usually identify themselves one way or the other. It makes no sense to force the Golan Heights' Israeli citizens to belong to the Syrian social network, as they have nothing to look for there; their entire social connections lie within the state of Israel. At the same time, it seems important to allow the Druze population to identify as Syrian, according to their true identity, and following their actual lingual and cultural social connections.

So here's my point: in today's world social networking has less and less to do with geo-political borders. One might live on one side of the world and affiliate with a social group defined by its location on the other side. Two people living in the same region might have no social connections, identifying themselves as members of completely different (and sometimes conflicting) nationalities. This is why I find it funny that Facebook - a website that is (1) designated for social purposes and (2) has no existence outside the web - seems to cling so strongly to the "one person, one regional affiliation" conception. Seriously, don't the people in Facebook know that the internet knows no borders?

(For some more reading: the digital methods initiative)

Without Prejudice

Hi there.

Well, this is fairly embarrassing: introducing myself to a yet nonexistent crowd.

After so many times of reading an article or watching a TV show and thinking: "Man, this is so annoying! If only I was there to state my opinion too!" I guess this is my way of stating all those opinions. Someone might even have interest in them.

My name is Raphael, and I am an Israeli law student at Columbia University in NYC. I guess this probably means two things: a lot of what I will be writing about might involve legal issues; and some of what I will be writing about will involve Israeli issues. But I really do believe that as particular as those issues can be, they are only worth blogging about because they involve matters that could and should be interesting for anyone. In that sense, I hope this won't be so much of a personal blog, but rather, a place to discuss ideas in. Also, as a non-native English speaker, bear with me and my grammar. It might get funny.