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Articles 1 - 30 of 50
Full-Text Articles in Law
Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària
Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària
Judicature International
No abstract provided.
When Do “Closed Camps” Become Prisons By Another Name?, Mara R, Revkin
When Do “Closed Camps” Become Prisons By Another Name?, Mara R, Revkin
Faculty Scholarship
There is an inherent tension between the widespread practice of establishing camps to provide temporary housing and humanitarian assistance to migrants and the fundamental human right to freedom of movement. According to the United Nations High Commissioner for Refugees (UNHCR), some degree of limitation on rights—including movement—is “the defining characteristic” of camps. International law permits states to impose some restrictions on the movement of migrants, including temporary confinement in “closed camps,” for lawful purposes, including identity verification and security screening in situations of war, emergency, or other grave and exceptional circumstances. But that permission is subject to important limitations: restrictions …
Closing International Law's Innocence Gap, Brandon L. Garrett, Laurence R. Helfer, Jayne C. Huckerby
Closing International Law's Innocence Gap, Brandon L. Garrett, Laurence R. Helfer, Jayne C. Huckerby
Faculty Scholarship
Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of national innocence organizations that increasingly collaborate across borders. It is striking that these developments have occurred with little direct help from international law. Although many treaties recognize extensive fair trial and appeal rights, no international human rights instrument—in its text, existing interpretation, or implementation—explicitly and …
Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji
Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji
Faculty Scholarship
This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.
Defending Refugees: A Case For Protective Procedural Safeguards In The Persecutor Bar Analysis, Charles Shane Ellison
Defending Refugees: A Case For Protective Procedural Safeguards In The Persecutor Bar Analysis, Charles Shane Ellison
Faculty Scholarship
For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory …
Semenya And Asa V Iaaf: Affirming The Lawfulness Of A Sex-Based Eligibility Rule For The Women’S Category In Elite Sport, Doriane Lambelet Coleman
Semenya And Asa V Iaaf: Affirming The Lawfulness Of A Sex-Based Eligibility Rule For The Women’S Category In Elite Sport, Doriane Lambelet Coleman
Faculty Scholarship
No abstract provided.
The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale
The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale
Faculty Scholarship
The article focuses on uses Alien Tort Statute as a vehicle for litigating human rights abuses in both civil and criminal prosecutions in the U.S. Topics discussed include developments in International Criminal Law in addressing human rights violations; judicial attitudes that could affect the interpretation of the Trafficking Victim Protection Act; and Sosa v. Alvarez-Machain court case on the same.
Sub-Regional Courts In Africa: Litigating The Hybrid Right To Freedom Of Movement, Laurence R. Helfer
Sub-Regional Courts In Africa: Litigating The Hybrid Right To Freedom Of Movement, Laurence R. Helfer
Faculty Scholarship
Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on sub-regional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice (EACJ), the Court of Justice of the Economic Community of West African States (ECOWAS), and the Tribunal of the Southern African Development Community (SADC) have received few suits challenging trade restrictions and other barriers to sub-regional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law.
This article offers the first analysis of EACJ, ECOWAS Court and …
Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby
Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby
Faculty Scholarship
No abstract provided.
The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller
The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer
Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer
Faculty Scholarship
This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …
Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry
Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry
Faculty Scholarship
No abstract provided.
The Importance Of The Right To Food For Achieving Global Health, Emilie K. Aguirre
The Importance Of The Right To Food For Achieving Global Health, Emilie K. Aguirre
Faculty Scholarship
The Framework Convention on Global Health (FCGH) represents a significant opportunity to realize the right to health globally. However, in order to succeed the FCGH must be carefully considered: it must take a new evidence-based approach that departs meaningfully from past shortcomings in realizing the right to health. Central to this approach is recognizing, formally incorporating, and operationalizing the right to adequate food. This right should be correctly interpreted as a right to a standard of nutritional quality and not as a right to a minimum number of calories. Because nutrition is critical to the achievement and maintenance of good …
Pharmaceutical Patents And The Human Right To Health The Contested Evolution Of The Transnational Legal Order On Access To Medicines, Laurence R. Helfer
Pharmaceutical Patents And The Human Right To Health The Contested Evolution Of The Transnational Legal Order On Access To Medicines, Laurence R. Helfer
Faculty Scholarship
Disputes over the regulation of access to medicines are occurring in multiple transnational, national, and local venues. Competing groups of states and non-state actors shift horizontally and vertically among these forums in an effort to develop competing legal rules over the propriety of granting intellectual property (IP) protection to newly developed life-saving drugs. This chapter applies the framework of Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015) to explain the origins of these controversies and their consequences. The chapter argues that the current state of affairs arose from a clash between two previously discrete TLOs—one relating to …
Mapping The Interface Between Human Rights And Intellectual Property, Laurence R. Helfer
Mapping The Interface Between Human Rights And Intellectual Property, Laurence R. Helfer
Faculty Scholarship
No abstract provided.
International Courts As Agents Of Legal Change: Evidence From Lgbt Rights In Europe, Laurence R. Helfer, Erik Voeten
International Courts As Agents Of Legal Change: Evidence From Lgbt Rights In Europe, Laurence R. Helfer, Erik Voeten
Faculty Scholarship
Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? The authors develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. The authors examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. The …
The Successes And Challenges For The European Court, Seen From The Outside, Laurence R. Helfer
The Successes And Challenges For The European Court, Seen From The Outside, Laurence R. Helfer
Faculty Scholarship
No abstract provided.
Globalization And Law: Law Beyond The State, Ralf Michaels
Globalization And Law: Law Beyond The State, Ralf Michaels
Faculty Scholarship
The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …
A New International Human Rights Court For West Africa: The Ecowas Community Court Of Justice, Karen J. Alter, Laurence R. Helfer, Jacqueline R. Mcallister
A New International Human Rights Court For West Africa: The Ecowas Community Court Of Justice, Karen J. Alter, Laurence R. Helfer, Jacqueline R. Mcallister
Faculty Scholarship
The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional …
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Faculty Scholarship
No abstract provided.
The Burdens And Benefits Of Brighton, Laurence R. Helfer
The Burdens And Benefits Of Brighton, Laurence R. Helfer
Faculty Scholarship
No abstract provided.
From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles
From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles
Faculty Scholarship
The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” …
Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin
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 …
State Action And Corporate Human Rights Liability, Curtis A. Bradley
State Action And Corporate Human Rights Liability, Curtis A. Bradley
Faculty Scholarship
This essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute. It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. § 1983. It also argues that, even if it were appropriate to borrow in this manner from the Section 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds.
Foreign Sovereign Immunity, Individual Officials, And Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith
Foreign Sovereign Immunity, Individual Officials, And Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith
Faculty Scholarship
For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are …
The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley
The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley
Faculty Scholarship
The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address …
Foreign Sovereign Immunity And Domestic Officer Suits, Curtis A. Bradley, Jack L. Goldsmith
Foreign Sovereign Immunity And Domestic Officer Suits, Curtis A. Bradley, Jack L. Goldsmith
Faculty Scholarship
Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ …
Narratives Of Oppression, Michael E. Tigar
The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer
The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer
Faculty Scholarship
This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …
The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo
The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo
Faculty Scholarship
No abstract provided.