9:30 AM  Breakfast

10:00 – 11:00 AM    Pratap Bhanu Mehta, Laurance S. Rockefeller Visiting Professor for Distinguished Teaching  

Caste Formalism: The Law and Politics of Equality in India (with Madhav Khosla)

This paper examines the law, sociology and philosophy of affirmative action in India, in comparative perspective.  The paper argues that Indian affirmative action jurisprudence has institutionalized what we call “caste formalism,” where caste operates as a rigid classification scheme, presuming causal effects on individuals without further specification. The paper is in three parts. 

The first part deals with the jurisprudence of caste, the way in which law constructs caste in India. We advance a novel interpretation of the history of that jurisprudence, charting its evolution from a concern from discrimination to a concern about backwardness. We show how the legal institutionalization of caste results in a radical change in the forms of social self-knowledge available to citizens. 

The second part shows that the legal construction of caste draws on one specific sociological interpretation of caste that is deeply contested and problematic and obscures the material and social complexities of caste. 

The third part discusses the implications of Indian jurisprudence for democracy, identity and equality in India. We place this discussion in comparative perspective. We show caste has become an inescapable reality in a new legal form and reflect on the implications that a schema of power sharing among caste groups has for identity and fraternity. We build towards a comparative jurisprudence arguing that the common source of the mistake in India and in the United States lies in denying the singularity of the Dalit and the racial experience, respectively. In India, the allocation of reservations for all caste groups has meant the formal partitioning of resources according to caste. In other words, each caste group is now associated with its own account of structural discrimination. As a result, not only does the idea of structural discrimination lose meaning, but also more fundamentally claims of individual discrimination are no longer easy to accommodate. Conversely, the American approach—a traditional formal equality approach—denies the very possibility of structural discrimination for any groups, including Black Americans. In denying the specificity of the racial experience, it has embraced the formalism that no group identity matters qua group. In different ways, the two formalisms each fail to find a correspondence between the nature of discrimination and beneficiary identification, which in turn marks their failure to discharge the moral burden of substantive equality. We argue that caste formalism impedes Ambedkar’s vision of fraternity as a society characterized by shared experiences and mutual respect remains unrealized.

For a copy of the paper, email [email protected]

11:00 – 11:15 AM Break

11:15 AM – 12:15 PM   Deborah Amos, Ferris Professor of Journalism in Residence.

The Expanding Toolbox for Accountability:  Universal Jurisdiction and Open-Source Investigations

In April 2020, a German court in the city of Koblenz opened the trial of Anwar Raslan and Eyad al-Gharib, former Syrian intelligence officials, on charges of crimes against humanity. This was the first trial in the world for state-sponsored torture in Syria. In 2022, the German court found both men guilty in a prosecution under the legal principle of universal jurisdiction (UJ).    Since then, there’s been a surge of UJ trials in Europe which includes 49 cases underway in nine prosecuting countries for war crimes committed in Syria since 2011.  

The Syrian cases have been out ahead of a new wave of war crimes prosecutions, which are now reaching Ukraine and the Middle East.   Deborah Amos has been watching these trials and observing the new sorts of evidence presented in these cases, focusing on the young war crimes investigators employing OSINT (open-source investigation techniques), like satellite imagery and cellphone videos.  OSINT has been valuable in these ongoing trials, but it is also important to address the associated challenges, including ensuring the reliability and authenticity of the information, and developing clear legal and ethical frameworks for its use. 

12:15 – 1:30 PM  Lunch

1:30 – 2:30 PM  Amelia Frank-Vitale, Assistant Professor of Anthropology and Public Affairs.

Beyond the Bench: Justice and Decision-Making in U.S. Immigration Courts

This research examines decision-making processes in U.S. immigration courts, where politics, law, and bureaucracy converge in life-or-death decision-making. In recent years, scholars, community organizers, and artists alike have problematized assumptions of fairness as embedded in the fabric of the U.S. criminal justice system (Roberts 2018; Kovera 2019). But what about in immigration courts, where ideas of justice are enacted, negotiated, and contested without the political independence of Article I or Article III courts? As an administrative law court, the immigration court is presided over by judges (IJs) who do not benefit from the political nonalignment presumed necessary for impartial adjudication. IJs navigate large caseloads, prolonged backlogs, performance reviews, and prevailing public opinion along with case law, circuit precedent, and the substantial breadth of statutes that govern immigration adjudication. This study examines how IJs perceive their authority to make decisions; the effects of cultural, linguistic, and technological barriers on outcomes; and how systemic administrative pressures and shifting policy landscapes shape decision-making. The study asks: how do the daily interactions within and beyond the courtroom shape experiences in court, influence judicial decision-making, and reflect—or contradict—public perceptions of justice and fairness?

2:30 - 2:45 PM  Break

2:45 – 3:45 PM    Paul Frymer, Professor of Politics.

The Legal and Political Development and Resilience of At-Will Employment Policy

In recent years, efforts to reform “at-will” employment—under which workers can be terminated by their employer without cause—have proliferated at the state level. These efforts are not without precedent; the legality of at-will as a practice that largely benefits employers at the cost of employee protections came under assault in the 1980s and 1990s, alongside multi-institutional efforts to expand employee rights. Major rights laws, including the Americans with Disabilities Act and the Civil Rights Act of 1991, were passed in the final years of the Bush Administration, with bipartisan support. State courts began finding more expansive rights for workers, even absent any changes to the doctrine itself. And legislation aimed at replacing at-will laws with alternate protections were discussed in statehouses across the country. Yet at-will employment—which governs most non-unionized workers—remains dominant today. Drawing on archives from the Uniform Law Commission, we examine the 1990s efforts to adopt the Model Employment Termination Act (META) to illuminate both the limits upon and opportunities for at-will reform. The act, put forth by a distinguished group of employment and legal policy analysts, sought to establish “just cause” termination policies at the state level, disputes over which would be handled by a process of arbitration. While supporters of this effort divided over who would handle arbitration proceedings, ultimately hampering META’s adoption, the bipartisan nature of this effort mirrored that of support for arbitration more generally, itself ascendant during the same period. We argue that this intersection of at-will reform and arbitration offers important lessons about the prospect of policy reform. While the private arbitration in practice today presents a formidable hurdle to many state level efforts, arbitration of the nature discussed in negotiations over META—public, government-sponsored arbitration—offers a potential path forward.

3:45 – 4:00 PM  Break

4:00 – 5:00 PM    Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs and Director of the Program in Law and Normative Thinking, UCHV.

Democracy in Danger:  

The Global Challenge of Autocratic Legalism

  Around the world, democratic elections are bringing to power leaders who have autocratic ambitions.   Once in office, many of these new autocrats use clever legal tricks to eliminate checks on what they can do and to ensure that they stay in power for the foreseeable future.    In the hands of Viktor Orbán, Narendra Modi, Recep Tayyip Erdogan, Vladimir Putin and Donald Trump, among others, law has become a weapon of autocracy entrenching them and their allies in power.   Scheppele explains the autocratic legalistic playbook and demonstrates how entrenched law can prevented the restoration of democracy.   She argues that we need a new approach to thinking about the rule of law in order to escape from the autocratic trap, one that sets the restoration of democracy rather than the blind adherence to legality as the normative standard.

5:30-7 PM  Reception