Summer 2002 Research Report Kristin J. Madigan Boalt Hall School of Law "How Argentine Legal Institutions are Responding to Current Political and Economic Change"

 

I traveled to Buenos Aires, Argentina in order to understand how Argentine legal institutions are responding to current political and economic uncertainty. I was particularly intrigued by the February 2002 decision handed down by the Argentine Supreme Court that declared the emergency banking freeze imposed former President Fernando de la Rua unconstitutional, and wanted to learn about the Argentine legal system and its role in protecting individual rights in this time of crisis. I was also interested in learning more about pending human rights litigation regarding impunity for criminal acts committed during the most recent military dictatorship. My goal for the summer was to perform substantive legal work while pursuing independent research that addressed the issues presented above.

During the first seven weeks of the summer I was a full-time judicial extern in the office of Supreme Court Justice, Dr. Moline O’Connor. My assignment was to write an advisory memorandum regarding a pending case, working under the direct supervision of Dr. Moline O’Connor’s staff attorney, Pablo Palazzi. I also enrolled in a course at the Universidad del Salvador entitled Argentine Legal Institutions, taught by the Secretary to the Argentine Supreme Court, Professor Rolando Gialdino.

While the Argentine legal system is based upon the French civil code system, the Argentine Constitution is modeled after the U.S. Constitution. Argentine legislators and judges often look to U.S. Supreme Court jurisprudence as a source of guidance. Although the 1994 Argentine constitutional reform expanded the scope of constitutionally protected rights by incorporating major international human rights treaties into the national constitution, U.S. Supreme Court jurisprudence remains a powerful source of legal authority for the Argentine Supreme Court.

My task was to analyze the lower court decisions of a specific case and draft an advisory memorandum for Dr. Moline O’Conner, applying Argentine law and related U.S. precedent. The issue was whether the victim of a crime could be compelled to submit to a blood test to prove paternity in a criminal investigation. This legal question emerged from a tragic set of facts. The victim learned at the age of twenty-one that her alleged biological parents and maternal grandfather were kidnapped and murdered by government officials during military dictatorship of the late 1970s-early 1980s. Her adoptive parents, a former military intelligence officer and his wife, now face criminal charges. The victim has refused to submit to a blood test to prove paternity because she is unwilling to provide the court with evidence that will be used against her adoptive parents in a criminal trial. In her defense, she argues that a compulsory blood test violates her right to privacy, right to physical, mental, and moral integrity, and her right to enjoy civil rights.

The Argentine Supreme Court has previously considered the constitutionality of a compulsory blood test to prove paternity under similar facts. The Court relied in part on the U.S. Supreme Court case, Schmerber v. California, 384 U.S. 757 (1966) to support the argument that a compulsory blood test does not violate the constitutionally protected right to due process or the right to freedom from unreasonable searches and seizures. My work involved analyzing these decisions and elaborating on the Schmerber decision and subsequent interpretations by U.S. Courts. I found that in the present matter, the Argentine Supreme Court will need to clearly articulate whether society’s interest in holding people responsible for criminal acts committed during the military dictatorship outweighs an adult victim’s privacy interest, and whether Argentine family law protections apply in this case.

I spent the remaining three weeks of the summer as a legal intern at the Center for Legal and Social Studies (CELS) and worked under the supervision of Dr. Andrea Pochak. CELS is a non-governmental human rights organization that litigates human rights violations before domestic and international courts. Current CELS litigation involves impunity issues, institutional violence, protection of economic, social, and cultural rights, access to information, and immigrant’s rights. My work with CELS
included the drafting a document analyzing Inter-American Commission’s interpretation of Article 8 of the American Declaration of the Rights and Duties of Man and translating a report directed to U.N. Special Rapporteur on Independence of the Judiciary Commission on Human Rights.

My experience in the Argentine Supreme Court and CELS proved to be extremely interesting because I was able to learn about the Argentine legal system from a practice-oriented perspective in the context of current economic and political instability. The crisis in Argentina has created an environment which requires legal intervention to help resolve issues of public safety, government appropriation of private assets, and freedom to assemble, to name a few. While daily life in Buenos Aires is surprisingly calm, every Argentine that I met is understandably concerned with the economic and political future of their country. Everyone has been affected by the crisis and people tend to hold very strong opinions regarding former president Menem’s administration and his possible re-election, the relative independence of the judiciary, and the economic implications of seeking IMF aid. My exposure to the Argentine Supreme Court did not affirm the negative public perception of a highly political Court that is engaged in a power struggle with the executive and legislature. Rather, as a judicial extern I worked in the company of extremely skilled attorneys and learned about the Court’s procedure. Conversely, by working at CELS I was able to see how a non-governmental organization develops legal strategy to effect institutional change while responding to local and immediate legal needs resulting from the crisis.

As a law student, my summer work helped me to further define immediate research goals and long-term career plans. I am currently enrolled in a legal institutions course and intend to write a paper analyzing the concept of judicial independence. I would like to use Argentina as a case study and will utilize research materials that I gathered throughout the summer. Ultimately, I hope to use this piece as the foundation for my legal writing requirement. In the long-term, I would like to practice international law, working in Latin America. As I continue my legal studies, I plan to expand the scope of my area of study in order to learn more about international debt management, privatization, and how the international system is used to protect human rights.