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February 13, 2009 2:40 PM

PAGES: Universal Drama, Translated into Legalese and Back

Posted by Michael D. Goldhaber

Foundation Press published 26 titles in its "Law Stories" series before it felt the need to insert the word "Advocacy" on a spine.

From Family Law Stories to Civil Rights Stories to, lord help us, Business Tax Stories, the series has drafted arid professors into the juicy service of storytelling, with mixed but worthy results. Now comes a volume with the inelegant title, Human Rights Advocacy Stories.

Margaret Satterthwaite of New York University School of Law, who co-edited the book, explains that the clunky title flowed from the book editors' choice to let lawyers who were involved in the cases tell their own stories. This approach violated the publisher's rules, and the law professors who edit the series agreed to make an exception only if the awkward word "Advocacy" were added to the title.

The vain belief in objectivity and lack of poetry displayed by the series editors are job hazards for lawyers. Fortunately, the book editors display passion and poetry in their case selection. The storytellers themselves slip the bonds of analytic writing only sporadically. Their attempts deserve praise.

Most of the book’s cases fall outside the casebook canon, and they reflect the diversity of human rights triumphs. We read of worldwide campaigns to ban torture, recognize rape as a genocidal crime, and curb World Bank support for megadams. Regional campaigns to end sodomy prosecution in Europe and Australia; or to promote indigenous rights in the Americas and socioeconomic rights in South Africa. U.S. campaigns to end juvenile capital punishment, to advance the case law on corporate human rights, and to close a forgotten detention camp for Haitian refugees at Guantanamo Bay. Even the regional or national campaigns recounted here have worldwide implications, and most fit the pattern of what Yale Law School’s Harold Koh, who helped to free the Guantanamo Haitians, calls “transnational public law litigation”: establishing global norms through the ferment of civil society and institutional dialogue.

Perhaps even most interesting, editorially, is the focus on nonsuccess stories. We read of Sierra Leone’s special court undermining its truth commission; Belgium’s prosecution of Israeli war crimes setting back universal jurisdiction; the failure of convictions in The Hague to satisfy Srebrenica’s victims; and the defeat of litigation challenging U.S. renditions (despite a successful media strategy). Other essays defend France’s restrictions on head scarves and argue for more troops in Afghanistan--both contrarian positions in the human rights community.

It’s a pity that the editors did not embrace subjectivity fully, and let the advocates present this provocative material in first person. Instead, we suffer the indignity of timid third-person legalese: “This Chapter does not purport to represent the full spectrum of opinions in the Muslim population or in France generally concerning the 2004 Law.” I am tempted to alert the U.N. rapporteur on linguistic torture.

Heavy use of acronyms is another per se violation of the International Convention on Decent Writing (a treaty emphatically not enforced by the U.N.). The mellifluous Narmada Bachao Andolan, which in Hindi means the Save Narmada Movement, is confusingly called the NBA. South Africa’s intuitive policy to prevent mother-to-child AIDS transmission becomes the tongue-twisting PMTCT.

In their best moments the storytellers trade the writing tics of a bureaucrat for those of a novelist. First and rarest is the ability to conjure a sense of place. In a few strokes James Anaya and Maia Campbell transport the reader to the Awas Tingni village in Nicaragua: “To escape the drizzling rain typical of that time of year, they all gathered under the awning of the Moravian church building. These distinctive red and white churches are a feature common to all indigenous communities of the Atlantic coast.” The most powerful images are as memorable as obscure acronyms are forgettable. Who can forget the Narmada Valley villagers clinging to their homes as the dam flood surges? “As waters rose,” writes Smita Narula, “the affected people of the lower hamlets stood knee-deep, refusing to move.”

Next in the novelist’s toolkit is building character. Most of the authors make but a perfunctory effort, settling for a teasing reference in the chapter ending to the landmark Cape Town plaintiff Irene Grootboom or to a 13-year-old slain Afghan girl named Shukria. Shouldn’t the story be theirs? An honorable exception is Doug Ford, who so immersed himself in his protagonist’s mind as to use her first name and attempt omniscient narration. “Mirsada despaired at the living situation, felt generally depressed, and thought of killing herself.” Ford makes us Mirsada’s confidantes.

Missing protagonists, the book is saved by the chorus of supporting actors who speak in their own full-throated voices. These snippets of real speech–drawn from transcripts and oral histories and documentaries--pulse with vitality. The contrast with the analytic prose in which they are embedded creates the intertextual tension that Mikhail Bakhtin, the literary critic, saw as the novel’s hallmark.

A witness at the Sierra Leone truth commission speaks with Biblical cadence of forced cannibalism: “They cut my son in pieces alive…. They cut him in pieces with a knife and when they opened his chest, they took out his heart and cut a piece of it and pushed it into my mouth, saying you first eat of it, but then when they have cut his head, they laid it in my hand saying go and breast feed your son and they started dancing.”

Other local characters, from as far afield as Beirut and Burma, share a voice closer to Hemingway. Whether it is because the immediacy of emotion is universal, or because translators reduce all communication to its essentials, these short, repetitive sentences are soaked in the same color.

Here speaks a survivor of the Sabra and Shatila massacre: “I will never forget. The image of that day is engraved in my memory. They ordered the men to stand against the wall. They made us go out behind them into the road. When I got to the door, I looked up at the red sky, red streaked with flare grenades. Once we arrived at the beginning of the road, we heard the shots fired at my father and my uncle…. As we walked along we saw the dead people.”

And here, sonnet-like, is the testimony of a Burmese slave laborer:
"The loads were so heavy that I couldn’t stand on my feet.
My friend helped me by holding me up from behind.
The weather was so hot and humid and we were so thirsty.
What I did to survive was to lick the sweat from my face."

Anaya and Campbell, who show a knack for scene-setting, are also unique in rendering dialogue. Which is to say, they present voices that stand out not only in relation to the professorial narrative, but also in relation to each other. In an Inter-American Court hearing, the dignified but disoriented tribal chiefs are offset by the sympathetic chief judge (and elsewhere, the mean-spirited defense counsel).

"Witness: Also, our grandfathers had this relationship with Asangpas Muigeni. Do you know Asangpas?
President: No. Can you explain. I am very interested in knowing.
Witness: Asangpas Muigeni is the spirit of the mountain...."

Scene, character, dialogue, textual tension. We see here the rudiments of the novelistic form.

Fortunately there is more than one way to tell a legal story. And some of the best, starting with Anthony Lewis’s Gideon’s Trumpet, owe more to the journalist’s craft than the novelist’s art. Through dogged reporting (or sometimes, just by picking up the phone), the journalist can discover insider detail that reveals hidden subtext or motivation. Memoir can work the same trick without the reportage.

Alison Nathan’s essay on Roper v. Simmons shows the virtues of the law story as journalism. The Supreme Court’s 2004 renunciation of the teen death penalty, in the respect it shows foreign legal sources, stands as the cosmopolitan high water mark of a system noted for insularity. Simply by picking up the phone and calling Seth Waxman, who represented the plaintiff, Nathan bathes a familiar tale in fresh light. Who knew that China's Chief Justice was in the audience during oral argument? Who knew that the Court heard a Somalian deportation case the day before? These arresting juxtapositions, as Waxman calls them, enabled him to subtly stress at argument that every country in the world -- including China -- had banned juvenile capital punishment, except the U.S. and Somalia, “which as this Court was reminded yesterday, has no organized government.” Waxman's jabs landed -- and, though they left no visible mark in the opinion, who is to say they were not determinative? Rights advocates are left to wish that the Chinese chief justice appear at every argument, or that judges internalize a sense of shame.

Nathan’s successful foray as storyteller offers hope to every left-brained law professor. Few dare aspire to Hemingway or Dickens. But anybody can be a hack journalist.

Michael D. Goldhaber is the Senior International Correspondent for The American Lawyer, and author of A People’s History of the European Court of Human Rights, newly available in softcover.

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