NYU Journal of International Law and Politics Online Symposium

[This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.]

We are proud to partner once again with Opinio Juris to present an online symposium discussing a thought-provoking issue of international significance. This year, we highlight Professor Rachel Lopez’s The (Re)collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice, which was recently published in Volume 47, Number 4, of the NYU Journal of International Law and Politics.

Today and tomorrow, we hear comments on Professor Lopez’s article from four distinguished scholars:

• Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
• Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.
• Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
• Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, Professor Lopez will respond to the comments.

Professor Lopez, Assistant Professor of Law and Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law, offers the following words to introduce the discussion:

First, I want to express my sincere appreciation to the editors at NYU JILP for organizing this symposium and Opinio Juris for hosting it. A central goal of this piece is to encourage a conversation about the proper role of collective memory—an enduring and shared memory of events—in transitional justice. This forum provides a great opportunity to spark that conversation with some of the most influential thinkers on transitional justice.

As a preface to the discussion, I thought that it would be helpful to summarize the central questions raised by the article and situate it in the context of my scholarship more broadly.

The impetus for this article arises from the challenges I encountered in representing survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects. Some have noted its potential for healing the wounds of a tattered national conscience and preventing future atrocities.

What my article explores is the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. Indeed, I believe that inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

This work draws on and builds from my other scholarship on transitional justice. As a general matter, I posit that transitional justice has distinct objectives that differ from traditional legal justice and that merely importing principles and procedures from other legal systems results in a mismatch between the transitioning society’s needs and the legal mechanisms employed. My research thus seeks to explain, analyze, and theorize about the unique role of justice after mass atrocities and how to better tailor transitional justice mechanisms to the specific needs of recovering societies.

The article also ties into another area of scholarly and professional interest: collective representation. As the director of a community lawyering clinic, I have been exploring innovative ways to engage collectives to guide the substantive focus and strategies of our work. Most recently, I co-authored with Susan Brooks Designing a Clinic Model for a Restorative Community Justice Partnership, which chronicles the development of the my clinic and highlights how the principle of deliberative democracy guides our engagement with the two communities we serve. As a general matter, I believe that our profession has an exaggerated fear of the corrupting influence of the collective, which manifests in a narrow conception of the attorney/client relationship that isolates clients in times of crisis when they most need communal support. In future scholarship, I hope to further examine models of lawyering that effectively balance the need for independent decision making with collective concerns and support.

I look forward to engaging with the participants in this discussion and want to thank them for generously offering their thoughts and critique.