Law Commons^™

Conditionality And Constitutional Change, Felix B. Chang

Faculty Articles and Other Publications

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority, the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement. Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union’s Roma integration …

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …

Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley

Publications

No abstract provided.

Refugees And Asylum, James C. Hathaway

Book Chapters

During the late nineteenth and early twentieth centuries, European governments enacted a series of immigration laws under which international migration was constrained in order to maximise advantage for States. These new, largely self-interested laws clashed with the enormity of a series of major population displacements within Europe, including the flight of more than a million Russians between 1917 and 1922, and the exodus during the early 1920s of hundreds of thousands of Armenians from Turkey. The social crisis brought on by the de facto immigration of so many refugees - present without authorisation in countries where they enjoyed no protection …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Equal By Law, Unequal By Caste: The "Untouchable" Condition In Critical Race Perspective, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Caste-based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that has long been labeled the “world's largest democracy;” a progressive and protective constitution; a system of laws designed to proscribe and punish acts of discrimination on the basis of caste; broad-based programs of affirmative action that include constitutionally mandated reservations or quotas for Dalits, or so-called “untouchables;” a plethora of caste-conscious measures designed to ensure the economic “upliftment” of Dalits; and an aggressive economic liberalization campaign to fuel India's economic growth.

This Article seeks to answer the question of how and why this …

A Different Departure: A Reply To Shany's "Redrawing Maps, Manipulating Demographics: On Exchange Of Populated Territories And Self-Determination", Timothy W. Waters

Articles by Maurer Faculty

Anyone reading Yuval Shany's response to my article, "The Blessing of Departure -- Exchange of Populated Territories: The Lieberman Plan as an Abstract Exercise in Demographic Transformation," would hardly characterize it as "agreement." In part this is because Shany builds his case by assuming I am saying something about self-determination that misses -- at least misplaces -- my real point. This is unfortunate, both as it masks the fact that Shany and I actually agree transfers can be legal, and it distracts attention from the points of real, substantive disagreement. The misreading is not an accident, rather the product of …

Rendition To Torture: The Case Of Maher Arar: Hearing Before The H. Comm. On Foreign Affairs,, 110th Cong., Oct. 18, 2007 (Statement Of David D. Cole, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Sacred Visions Of Law, Robert Tsai

Articles in Law Reviews & Other Academic Journals

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Making Room For Critical Race Theory In International Law: Some Practical Pointers, Penelope Andrews

Articles & Chapters

In addition to assessing the pertinence of critical race theory in unmasking international law's colonial, racist and patriarchal underpinnings, this paper attempts to suggest practical ways in which a critical race theoryapproach can enrich the international legal system, by giving a voice to the voiceless and by addressing the conditions of marginality in which much of the developing world is trapped.

This paper will do three things. First, it will peruse the contemporary global situation with respect to international law and human rights. Second, it will assess the contribution of critical race theory in advancing an understanding of, and solution …

The Imposition Of The Death Penalty In The United States Of America: Does It Comply With International Norms?, Beverly Mcqueary Smith

Scholarly Works

No abstract provided.

The Tragedy Of Hong Kong, Richard Klein

Scholarly Works

While the world watched the fireworks and celebrations occurring in Hong Kong on July 1, 1997, a far sadder event was, in fact, unfolding. The people of Hong Kong, most of whom had originally fled from China -- the country which was now taking over -- have simply never experienced the basic human right of self-determination. Rule was shifting from a colonial power which had denied the people of Hong Kong their basic human rights for virtually all of its 155-year administration, to a country which, immediately upon assuming sovereignty, made it clear that democracy would remain but a dream.

Exporting The American Bill Of Rights: The Lesson From Romania, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.

The Role Of The United States Senate Concerning "Self-Executing" And "Non-Self-Executing Treaties", Lori Fisler Damrosch

Faculty Scholarship

This essay concerns a pattern in treaty actions of the U.S. Senate which tends to weaken the domestic legal effect of treaties. Under this pattern, the Senate qualifies its consent to U.S. ratification of the treaty with a declaration or other condition to the effect that the treaty shall be non-self-executing, or otherwise expresses its intention that the treaty shall not be used as a direct source of law in U.S. courts. Such qualifications, referred to hereinafter as "non-self-executing declarations," give rise to important questions about the place of the affected treaties within the fabric of U.S. law, especially in …