Martha Minow

Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It

Reflecting market rhetoric but also potentially advancing spiritual and religious values, school voucher plans dominate current debates on education reform. These voucher plans would enable parents to use public dollars to select private schools, including parochial ones, for their children. Moreover, the recent federal welfare reform includes the “charitable choice” provision, which enables states to issue vouchers to individuals who can redeem them for services and aid from private, including religious, entities. In this Article, Professor Minow predicts that constitutional challenges to these plans under the religion clauses are likely to result in judicial approval of school vouchers and judicial rejection of charitable choice, even though she finds school vouchers the more troubling policy and charitable choice the more promising one. Both kinds of proposals raise challenging questions about individual choice, its reliability, and its importance relative to the need for commonality in society sufficient to bridge plural and potentially divided communities. Yet, both proposals are superior to simplistic al† Professor, Harvard Law School. A version of this Article was presented as the Brainerd Currie Lecture, Duke University School of Law, Feb. 18, 1999. I thank Dean Pamela Gann for the invitation and members of the Duke Law School community for engaging questions and comments. Another version of this work will appear in a book entitled Who Provides, which emerged from the Harvard Divinity School Seminar on Democratic Revival. I would like to thank Ron Thiemann and Brent Coffin for involving me in that seminar, seminar participants for their comments, and Edward Baker, Ronald Dworkin, Frank Michelman, Jenny Mansbridge, Thomas Nagel, Rick Weissbourd, and Larry Sager for valuable discussions. Avi Soifer, David Wilkins, David Wang, and especially Larry Blum offered intense scrutiny, for which I am grateful. Thanks especially to Andrew Varcoe for research assistance beyond the call of duty. Thanks to Kate Cook, Catherine Claypoole, Jesse Fisher, Dalia Tsuk, Nina Wang, and Jean Chang for background materials, and to Laurie Corzett for dealing with word processing nightmares. MINOW TO PRINTER.DOC 01/20/00 2:51 PM 494 DUKE LAW JOURNAL [Vol. 49:493 ternatives that assign responsibility for schooling and welfare entirely to homogeneous communities, to the federal government, or to each individual. Voucher proposals, if regulated, can establish constructive partnerships between governments and private, including religious, entities at the local, state, and federal levels.

Law Turning Outward

Questions addressed by law often resemble those addressed in other disciplines. The methodology of law, however, is different. Law is more likely to rely on precedent, to use syllogistic logic, and to deploy burdens of proof and evidentiary devices, to be preoccupied with rules and policy analysis. These methods have been fruitful in philosophy, history, and other discipline. Yet, the specialization of legal study has cut it off from easy communication with other disciplines. In this light, it is especially striking to find an explosion of legal scholarship using nonlegal methodologies and insights. Here, indeed, three seemingly different developments converge.

Making History or Making Peace: When Prosecutions Should Give Way to Truth Commissions and Peace Negotiations

This essay identifies a set of choices for national leaders and human rights advocates following mass atrocities, including whether to pursue a truth commission, how to coordinate its relationship with potential criminal prosecutions, whether to “name names,” as well as trade-offs between pursuit of human rights vindication and pursuit of peace. The strengths and limitations of criminal and civil trials for legal enforcement of human rights, no less than the promise and constraints of truth commissions, require careful assessment of particular political contexts and prospects for success. Public and scholarly debates over whether and when to pursue a truth commission, as well as the work of such commissions, can advance the development of and commitment to human rights ideals in communities emerging from periods of mass atrocity. The choice between trials and truth commissions resembles but also differs from the choice between accountability and peace; both choices expose potential contrasts between vindicating and enacting human rights. Even as many nations use both trials and truth commissions—simultaneously or in a series—the distinctive contribution of each to advancing human rights remains more contingent than inherent. Each institutional response warrants close consideration.

The Public Duties of Families and Children

Disappointment with legal treatment of children has been a recurring theme in legal and political circles for nearly 100 years in this country. Criticism spawned innovations like the juvenile court, yet some of the disappointment arises when experiments seem to fail on their own terms. The juvenile court, in particular, produced chaotic and bureaucratic environments with questionable ties to justice. Subsequent reforms introduced greater protection for rights of juveniles in the court, yet these too have been sharply criticized for failing to alter the perception—of both alleged offenders and victims of juvenile crime—that unfairness, routinization, and superficiality characterize the legal response to juvenile crime.

Violence against Women — A Challenge to the Supreme Court

This issue of the Journal includes two reports on risk factors for violent injuries to women. The findings of Kyriacou et al.1 and Grisso et al.,2 from case–control studies in hospital emergency ro...

The First Global Prosecutor: Promise and Constraints

The establishment of the International Criminal Court (ICC) gave rise to the first permanent Office of the Prosecutor (OTP), with independent powers of investigation and prosecution. Elected in 2003 for a nine-year term as the ICCAEs first Prosecutor, Luis Moreno Ocampo established policies and practices for when and how to investigate, when to pursue prosecution, and how to obtain the cooperation of sovereign nations. He laid a foundation for the OTPAEs involvement with the United Nations Security Council, state parties, nongovernmental organizations, victims, the accused, witnesses, and the media. This volume of essays presents the first sustained examination of this unique office and offers a rare look into international justice. The contributors, ranging from legal scholars to practitioners of international law, explore the spectrum of options available to the OTP, the particular choices Moreno Ocampo made, and issues ripe for consideration as his successor, Fatou B. Bensouda, assumes her duties. The beginning ofBensoudaAEs term thus offers the perfect opportunity to examine the first ProsecutorAEs singular efforts to strengthen international justice, in all its facets.

Learning from Experience: The Impact of Research About Family Support Programs on Public Policy

Do public policies reflect the experiences of people who implement them or those who are supposed to benefit from them? This kind of question may seem remote from the work of an appellate judge, and yet Judge David Bazelons abiding interest in the links and gaps between social science and law grew from concern with this basic question. I will focus on a particular social welfare program as I explore the failure of public policy to respond to social science findings. For those who did not know Judge Bazelon, however, here is a fuller explanation of why I chose this topic for this symposium honoring the Judge. One day while I was clerking for Judge Bazelon, a classmate clerking at another court conjectured that the appellate world of the D.C. Circuit was narrow, given its focus on the records of administrative actions and its cloistered setting. I found myself replying that the world of Judge Bazelon was the opposite of narrow. I regaled my friend with the list of journalists, scientists, social scientists, and authors who had come either to chambers or to lunch with the Judge and his clerks to discuss topics ranging from the psychological dimensions of risk assessment to international responses to American television. Indeed, it was a heady world. Judge Bazelon drew a variety of intriguing people into his orbit and engaged them immediately in the opposite of small talk. We would sit at the round table in the Judges office, munching on cookies and pretzels, while the Judge pressed a visitor for answers about the origins of crime, relationships between reason and emotion, or the political dimensions of ostensibly scientific evidence. In these sessions, Judge Bazelon manifested his enduring ambivalence about experts. On the one hand, he looked to them

Forgiveness, Law, and Justice

Introduction 1616 I. What Is Forgiveness? 1618 II. What Roles May Law Play in Forgiveness? 1620 III. Questions About the Inquiry into Law and Forgiveness 1626 A. Does Using Law to Promote Forgiveness Wrongly Impose Burdens? 1626 B. How Does Societal Forgiveness Compare with Interpersonal Forgiveness? 1627 C. Does Forgiveness Amount to a “Second Best” When Justice Is Not Possible? 1630 D. Does Forgiveness Impair Law and Its Commitments to Predictability and Equal Treatment? 1630 1. Should International Criminal Law Forgive Failures to Prosecute When Truth Commissions Rather Than Criminal Prosecutions Follow Mass Atrocities? 1631 2. Child Soldiers? 1633 3. Forgiving Debt 1638 IV. Closing Thoughts and Recommendations 1644

Upstanders, Whistle-Blowers, and Rescuers

I will explore several ways people can be upstanders; reasons why people are not upstanders; and potential collective efforts that could make it easier or more likely that people become upstanders. I begin though with a story of stories — five stories actually — to make upstanding vivid, to honor courageous individuals and identify challenges for the rest of us, and to raise a question: does honoring upstanders and telling their stories increase the chances that others will follow in their paths, or suggest that only exceptional individuals with unusual qualities are upstanders? What would it take for the rest of us to stand up?