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Vol. XIII-i

Masthead

ARTICLES

Tara J. Melish, Maximum Feasible Participation of the Poor: New Governance, New Accountability, and a 21st Century War on the Sources of Poverty
ABSTRACT

Jessie M. Hohmann, Visions of Social Transformation and the Invocation of Human Rights in Mumbai: The Struggle for the Right to Housing
ABSTRACT

Shannon M. Roesler, The Ethics of Global Justice Lawyering
ABSTRACT

NOTE FROM THE FIELD

Hassan Jabareen, Transnational Lawyering and Legal Resistance in National Courts: Palestinian Cases before the Israeli Supreme Court
ABSTRACT

NOTE

Rachel Ward Saltzman, Distributing Emissions Rights in the Global Order: The Case for Equal Per Capita Allocation


ABSTRACTS

Maximum Feasible Participation of the Poor: New Governance, New Accountability, and a 21st Century War on the Sources of Poverty by Tara J. Melish

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to “strike away the barriers to full participation” in our society. Central to that war was an understanding that given poverty’s complex and multi-layered causes, identifying, implementing, and monitoring solutions to it would require the “maximum feasible participation” of affected communities. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, an Office of Economic Opportunity was established – situated in the Executive Office of the President itself – to support, through encouragement, funding, and coordination, the development and implementation of community-based plans of action for poverty alleviation, as identified and prioritized by the poor themselves.

This Article urges a return to this practical, locally-responsive, yet federally-orchestrated orientation of U.S. social welfare law. It argues that while the regulatory and political context of the 1960s provided inauspicious ground for the early “maximum feasible participation” policy to effectively take root, four decades later, two broad paradigm shifts have yielded a new, more fertile opportunity framework. The first involves the shift in U.S. regulatory law away from earlier command-andcontrol structures favoring fixed rules and centralized enforcement, toward a New Governance model that privileges decentralization, flexibility, stakeholder participation, performance indicators, and guided discretion. The second is the concurrent paradigm shift in U.S. social movement approaches to poverty – what I call “New Accountability” – which similarly promotes local voice and inclusive participation, performance monitoring around human rights standards, and negotiated policymaking (rather than non-negotiable material demands and mass confrontation, the preferred tactics of 1960s activism). Supported by a renewed U.S. interest in collecting and reporting performance indicators for government programs, these two shifts converge to create a theory and policy-based environment in which it is both practically feasible and normatively coherent to re-embrace the participatory orientation of the early “War on the Sources of Poverty” strategy.

The challenge for U.S. social welfare rights law, I argue, is how to bring these two complementary paradigms together in constructive synergy to mount a 21st century battle against poverty. A set of national subsidiarity-based institutions to support this effort is proposed, each mandated to orchestrate and competitively incentivize targeted antipoverty efforts by all social stakeholders, while opening new institutional spaces for the active participation of the poor in all aspects of meeting the nation’s poverty reduction targets.

Visions of Social Transformation and the Invocation of Human Rights in Mumbai: The Struggle for the Right to Housing by Jessie M. Hohmann

The struggle for access to and control over a space in which to live has made housing a central issue for the city of Mumbai. The city’s history is one in which human rights and, in particular, the right to housing have played an important role. This article examines the Indian Supreme Court’s development of the right to housing as an aspect of the right to life, placing this unique jurisprudence within the complex reality of life for Mumbai’s inhabitants. The article traces the growth of this expansive human right through the Indian jurisprudence and then contrasts the housing rights case law with more recent litigation on the environment, urban growth, and rural development, in which the housing rights of marginalized communities have been radically refigured. The analysis reveals competing visions of how human rights should be interpreted and whose interests these norms should protect. In fact, as the article exposes, the contested interpretation of the right to housing is caught up in competing visions of India’s social transformation into a new, “modern” state and the place of its marginalized citizens within that state. In this context, the right to housing emerges as a site of struggle through which the meaning of urban citizenship, participation, and the future of the city itself are contested. The article closes by offering some conclusions on the factors underlying the shift in popular and judicial human rights discourse, showing that competing visions of social transformation have had concrete impacts on the human rights of India’s most marginalized citizens.

The Ethics of Global Justice Lawyering by Shannon M. Roesler

In the last two decades, as states, international institutions, and private donors invested heavily in the rule of law and human rights, lawyers gained a prominent place in transnational projects to reform domestic laws and institutions. As the U.S. legal profession moves into this global arena, we should pause to consider the ethical questions raised by the practices of “global justice lawyering.” Broadly conceived, two questions govern this inquiry: (1) What ethical justifications support the U.S. lawyer’s role in reforming the laws and political institutions of other societies? (2) Even if we can justify this role in theory, can we justify the particular practices of global justice lawyers?

To answer the first question, I draw on the ethical doctrine of cosmopolitanism, as well as the U.S. legal profession’s commitments to the rule of law and reformative justice, to conclude that there are strong ethical reasons to promote global justice. These reasons do not, however, justify promotion by any means. This is the dilemma of the cosmopolitan lawyer: the cosmopolitan project of global justice – although morally justified in theory – presents ethical questions in practice. In the final section of the Article, I suggest that to avoid ethical concerns, global justice lawyers must reject an “import” approach to law, in which foreign laws and institutions are transplanted into new environments, in favor of a normative approach to the processes of lawmaking.

Transnational Lawyering and Legal Resistance in National Courts: Palestinian Cases before the Israeli Supreme Court by Hassan Jabareen

This Note explores the strategies of transnational cause lawyers working within national courts. It begins by documenting the emerging use of international norms and arguments for the purpose of mobilizing local communities and affecting domestic laws. The use of transnational law today broadens the legal imagination of lawyers beyond their national borders, constraints, and traditional audiences. Redefining the boundaries of a legal victory, transnational law provides lawyers with tools to continue bringing legal challenges while avoiding the dilemmas of legitimating oppressive legal structures.

This Note presents a case study of transnational lawyering, in the context of challenging ongoing military operations through the invocation of international humanitarian law. In 2002, lawyers from Adalah – The Legal Center for Arab Minority Rights in Israel – filed an unprecedented series of petitions before the Supreme Court of Israel during an unfolding military operation in the West Bank. They did this despite knowing that the Supreme Court would not intervene in the military’s operational activities. The article chronicles the choices made by the Adalah lawyers who sought to use the petitions as a vehicle to create a legal and historical record of the events. Bypassing domestic law, the petitions were anchored in international humanitarian law principles. They spurred official state, military, and judicial responses to the allegations while the hostilities were still ongoing, a crucial record amidst an enforced media blackout. The case illustrates how transnational lawyering succeeded in mobilizing international bodies through domestic courts.