Concerns about the Limits of Creative Lawyering

-- By SamHershey - 16 Apr 2010

Here vs. There

While the health care bill was stirring controversy last month, I couldn’t help but reflect on past experiences in my own life which influence my perception of problems in the world. Rather than debating the health care bill itself, touted as one of the most pressing issues we face, I found myself telling friends about the devastating, eye-opening time I spent in Cambodia last year. I witnessed not only the most abject poverty, but also its most horrific consequence: child prostitution. I could not even walk down the streets of Phnom Penh at night without being solicited to buy time with a young girl. The images stayed with me when I came home, and when the health care bill passed, I could not help but think about them again. While it is hard not to be thrilled that more Americans now have access to health care, I find it difficult to ignore that while the problems left for us to solve domestically are certainly urgent and worthy, they pale in comparison to the problems faced by so many abroad. And as I am becoming a lawyer, I worry that creative lawyering cannot do much to help.

The Broader Focus

In my insistence that Americans need to focus more on fighting what I believe to be the greatest injustices, I was surprised at how much resistance I encountered. A common claim was that we have a heightened moral obligation to the people in our own country. But that claim never made sense to me—why do lines on a map delineate moral responsibilities? Should local duties on one side of the line (e.g., California) justify ignoring greater injustice on the other (e.g., Mexico)? Some arguments looked past morality to practicality: help who you can where you can. Also, there is probably some sense that our tax revenue should be spent on us first and foremost (while this to some extent may ignore the reality of the US budget, it has intuitive appeal). I certainly see the value in a realistic approach, but I insisted, perhaps naively, that Americans can (and should) affect real change abroad. In light of what I now know about American efforts to combat the foreign child sex industry, I find myself doubting that proposition.

Sweden's Approach, and Our Late Arrival

Since 1962, Sweden has enforced extraterritorial laws that allow for the prosecution of Swedish citizens who have engaged in child prostitution anywhere in the world. The US was slow to catch up, but in 1994 the Clinton Administration included an extraterritorial provision similar to Sweden’s in its Crime Bill. While under the original bill prosecutions were exceedingly difficult, Congress eased this burden with the 2003 PROTECT Act. Both countries, however, have used these measures with only limited success. Stockholm University estimates that four to five thousand Swedish citizens travel abroad every year to buy sex with children, but the Swedish government has been able to bring only a few prosecutions. And in America, before the PROTECT Act, only five men had been prosecuted for engaging in child prostitution abroad. Since the act’s passing, the US has prosecuted only a dozen more. The problem with using domestic law to combat child prostitution abroad is enforcement. The governments of the host countries are at best indifferent and at worst complicit, not wanting to deter tourism of any kind. And while Sweden has stepped up its efforts even further recently, the outlook on this kind of approach being successful looks grim.

The Fundamental Problem

There are some obvious impediments to success which prevent these laws from being effective. First, because the sanctions are criminal, only federal prosecutors can initiate a case, and prosecutors have such great discretion (and enormous caseloads) that it seems unlikely they would have the resources or the interest to tackle this problem. Even if they personally wanted to champion this cause, the aforementioned priority of domestic issues in popular consciousness combined with the internal and external political pressures prosecutors face would probably prevent them from doing so.

Aside from prosecutorial discretion, international problems also involve complex and politically explosive policy, diplomacy and trade issues, which means often times some injustices go ignored to protect other priorities. As a young lawyer, is there anything I can do? I can obviously support NGOs which help the victims in host countries, either through volunteer work or financially. I can try to organize and put political pressure on those who hold the reins. I could maybe become a federal prosecutor, or a policy advisor to Congress or the executive, or even become a lawyer in the host country and learn what law they have in place to combat child prostitution, if any. But aside from these options, is there anything I, as a lawyer, can do with my practice to help?

Futility?

As Eben said many times, creative lawyering is difficult. I do not mean this paper to be a statement of surrender, but rather a question. As we as lawyers attempt to achieve justice, and as America advances domestically, is there anything meaningful that we can do to combat (what we perceive as) the greatest injustices that remain outside our borders? And on an even broader scale, how do we tackle problems as lawyers when there is very little law, if any, that deals with the problem? How do we deal with an issue the law may never have faced? In any area of law, domestic or foreign, this is the real work of creative lawyering, and while I may not know how yet, I hope that there are enough creative lawyers out there (myself included) who can do it.

This comment is in reference to your first two paragraphs about the great injustices abroad as compared to here in the U.S. I wholly agree that so many of the problems faced abroad are so much larger than those that are domestic. And, contrary to popular belief, I don’t think there is anything wrong with admitting that.

For example, I’ve heard many Americans ask why people adopt from outside of the U.S. when there are so many children in the U.S. that need homes. This may be true but what worse: being in foster care in the U.S. or being out on the streets of a third-world country because there’s really no foster care system for unwanted children?

We should look at ourselves as a world community, where we try to not only help ourselves, but help others. The argument about tax revenues is a strong one that I, too, can understand. The government has a duty to protect their citizens first. But if individuals and corporations took more of a stand, they, too, could make a difference.

-- StephanieOduro - 15 May 2010