Law Commons^™

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

The Minds Behind The Movement: The Role Of Academics In East Asia’S War Reparations Litigation, Timothy Webster

Faculty Scholarship

East Asia's war compensation litigation simultaneously unites diverse regional actors (lawyers, survivors, activists) and fray international relations (as recent verdicts from South Korea attest). However, one view of the merits of these lawsuits is that they have reconfigured transnational activism in East Asia, exhumed forgotten and suppressed histories of Japanese aggression, and on occasion compensated victims of World War II. This Article highlights the role of Chinese, Japanese, Korean, Taiwanese activists, lawyers and scholars in researching, filing, litigating and appealing over 80 lawsuits between 1972 and the present.

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Transgender Rights & The Eighth Amendment, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo …

The Long Tail Of World War Ii: Jus Post Bellum In Contemporary East Asia, Timothy Webster

Faculty Scholarship

The shadow of World War II still looms over East Asia. Unlike the West, issues of state accountability, corporate liability, and individual reparation roil the victims, governments, and civil society organizations. It stills form a critical, often controversial, backdrop for international relations among China, Japan, Korea, and other Asian nations. This chapter fills an important gap by focusing on jus post bellum outside of the West. The chapter examines the results, motivations, and achievements of civil litigation, namely approximately one hundred World War II reparations lawsuits filed in Japan. In so doing, it answers three related questions. Why does World …

Disaggregating Corporate Liability: Japanese Multinationals And World War Ii, Timothy Webster

Faculty Scholarship

The past two decades have witnessed unprecedented attention to corporate legal liability for human rights abuses. Yet the supporting jurisprudence is relatively thin. Scholars generally agree that corporations can incur legal liability for serious violations of international human rights law. But courts find any number of ways to avoid such a result. This Article finds qualified support for an emergent norm of corporate civil liability from recent litigation in Japan. Specifically, the transnational war reparations litigation of the past three decades has yielded a consistent jurisprudence of qualified liability. Courts detail the abuses committed by Japan's largest multinational corporations, and …

Obama’S National Security Exceptionalism, Sudha Setty

Faculty Scholarship

This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the …

Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity

Faculty Scholarship

The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror, from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.

Formalism And State Secrets, Sudha Setty

Faculty Scholarship

The state secrets privilege has received a tremendous amount of scholarly attention in the U.S. in the last decade. In September 2009, the Obama administration created a new policy that mandated a more rigorous internal administrative review prior to invoking the state secrets privilege. It appears as though this internal review process has resulted in little difference with regard to the invocation of the privilege at the pleadings stage in cases that allege torture and other human rights abuses. This chapter of the forthcoming comparative law volume Secrecy, National Security and the Vindication of Constitutional Law (David Cole, Federico Fabbrini …

Double-Edged Paring Knives: Human Rights Dilemmas For Special Populations, Giovanna Shay

Faculty Scholarship

The United States makes up only 5 percent of the world's population, but it incarcerates 25 percent of the globe's prisoners. This unprecedented level of incarceration has brought increased attention to the problems of particular subsets of prisoners sometimes called "special populations." These groups include female prisoners; lesbian, gay, bisexual, transgender (LGBT), and questioning inmates; older prisoners; and prisoners with mental illness and physical disabilities. This Article discusses human rights dilemmas in the treatment of special populations in prison.

The Article surveys ABA Standards and Resolutions that bear on special populations. While ABA Standards do not have the force of …

Criminalized State: The International Criminal Court, The Responsibility To Protect, And Darfur, Republic Of Sudan, Matthew H. Charity

Faculty Scholarship

The international community continues to struggle with the question of what to do when a nation fails to protect its own people from systemic neglect, mistreatment, or even genocide. For many years, this debate pitted proponents of humanitarian intervention by a third-party against those who believe that all others must defer to the sovereign right of the state to control its own affairs and the affairs of its people. In the midst of this debate, the international community has adopted a middle road: insisting that states must acknowledge their responsibility to protect their populations and if the state manifestly fails …

Book Review: Elizabeth Wicks' Human Rights And Healthcare, Barbara A. Noah

Faculty Scholarship

The Author reviews the book Human Rights and Healthcare, by Elizabeth Wicks and published by Hart Publishing, 2007. Although the book focuses mainly on rights within the United Kingdom, those familiar with healthcare and bioethics issues within the United States or elsewhere will find it an extremely useful comparative resource.

Protecting Transgender Families: Strategies For Advocates, Taylor Flynn

Faculty Scholarship

For a transgender (trans) man or woman, what begins as the dissolution of a relationship may be transformed into a public nightmare in which the individual is forced to defend the authenticity of his or her gender in the face of relentless, brutal, and humiliating questions about the most intimate details of personal anatomy and sexual practices. This Article discusses this reality in the case of Michael Kantaras, a transsexual man in Clearwater, Florida in 2002.