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Full-Text Articles in Jurisprudence

The Human Right To A Healthy Environment: Pushing The Boundaries In The Inter-American System, Sarah Dávila-Ruhaak Oct 2019

The Human Right To A Healthy Environment: Pushing The Boundaries In The Inter-American System, Sarah Dávila-Ruhaak

Conference: The Social Practice of Human Rights

The connection between the environment and human rights is not a surprising one. The enjoyment of human rights depends on a person’s ability to live free from interference and to have his or her rights protected. The interdependence of human rights and the protection of the environment is manifested in the full and effective enjoyment of the rights to life, highest attainable standard of physical and mental health, adequate standard of living, adequate food, clean water and sanitation, housing, culture, freedom of expression and association, information and education, participation, effective remedies, and the rights of indigenous peoples. Without adequate ...


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young Aug 2019

Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young

Katharine G. Young

The obligation of ‘progressive realization’ under the International Covenant on Economic and Social Rights is often interpreted in light of available resources - this chapter examines, instead, the variable of time. Noting that delay of rights is akin to denial of rights, Young explores the various ways in which accountability models, at the international level, have elaborated on concrete, and temporal, benchmarks. These include the minimum core, and non-retrogression doctrines, and the exercises in comparative rankings. These are important sources of accountability, especially for positive obligations. And yet with the promise of rights, law nevertheless structures the expectations of rights-holders. This ...


The Future Of Economic And Social Rights: Introduction, Katharine G. Young Aug 2019

The Future Of Economic And Social Rights: Introduction, Katharine G. Young

Katharine G. Young

The future of economic and social rights is unlikely to resemble its past. Neglected within the human rights movement, avoided by courts, and subsumed within a conception of development in which economic growth was considered a necessary (and, by some, sufficient) condition for rights fulfillment, economic and social rights enjoyed an uncertain status in international human rights law and in the public laws of most countries. Yet today, under conditions of immense poverty, insecurity, and social distress, the rights to education, health care, housing, social security, food, water, and sanitation are increasingly at the top of the human rights agenda ...


“There’S Voices In The Night Trying To Be Heard”: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi M. Weinstein May 2019

“There’S Voices In The Night Trying To Be Heard”: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi M. Weinstein

Brooklyn Law Review

This article carefully examines, through a therapeutic jurisprudence framework, the likely impact of the United States’ ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on U.S. society’s sanist attitudes towards persons with mental disabilities. Although the United Nations ratified the CRPD—the most significant historical development in the recognition of the human rights of persons with mental disabilities— in 2008, the United States has yet to ratify it. In this article, we consider whether the CRPD, if ratified, is likely to finally extinguish the toxic stench of sanism that permeates all levels ...


The "Guarantee" Clause, Ryan C. Williams Apr 2019

The "Guarantee" Clause, Ryan C. Williams

Ryan Williams

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...


Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson Mar 2019

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Immigration's Future: Closing The Door On The American Dream?, Ritcy Canelon Jan 2019

Immigration's Future: Closing The Door On The American Dream?, Ritcy Canelon

Barry Law Review

No abstract provided.


Human Rights Racism, Anna Spain Bradley Jan 2019

Human Rights Racism, Anna Spain Bradley

Articles

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She ...


The Threat Is Real: Protecting The Energy Infrastructure From Cyberattacks, Patricia Blotzer Jan 2019

The Threat Is Real: Protecting The Energy Infrastructure From Cyberattacks, Patricia Blotzer

Barry Law Review

No abstract provided.


The Right To Migrate: A Human Rights Response To Immigration Restrictionism In Argentina, David C. Baluarte Jan 2019

The Right To Migrate: A Human Rights Response To Immigration Restrictionism In Argentina, David C. Baluarte

Washington University Global Studies Law Review

Within days of President Donald Trump’s 2017 Executive Orders on border security and immigration enforcement, President Mauricio Macri of Argentina issued a Decree to address what he declared was an urgent problem of immigrant criminality. The timing of the two Presidents’ actions triggered concerns that U.S.-style restrictionist immigration regulation was spreading to South America, a continent that has taken progressive steps towards recognizing the human rights of migrants in recent years. Until Macri’s 2017 Decree, Argentina was considered a leader in this regard, with its 2004 immigration law that boldly codified a “right to migrate” and ...


Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young Jan 2019

Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young

Boston College Law School Faculty Papers

The obligation of ‘progressive realization’ under the International Covenant on Economic and Social Rights is often interpreted in light of available resources - this chapter examines, instead, the variable of time. Noting that delay of rights is akin to denial of rights, Young explores the various ways in which accountability models, at the international level, have elaborated on concrete, and temporal, benchmarks. These include the minimum core, and non-retrogression doctrines, and the exercises in comparative rankings. These are important sources of accountability, especially for positive obligations. And yet with the promise of rights, law nevertheless structures the expectations of rights-holders. This ...


The Future Of Economic And Social Rights: Introduction, Katharine G. Young Jan 2019

The Future Of Economic And Social Rights: Introduction, Katharine G. Young

Boston College Law School Faculty Papers

The future of economic and social rights is unlikely to resemble its past. Neglected within the human rights movement, avoided by courts, and subsumed within a conception of development in which economic growth was considered a necessary (and, by some, sufficient) condition for rights fulfillment, economic and social rights enjoyed an uncertain status in international human rights law and in the public laws of most countries. Yet today, under conditions of immense poverty, insecurity, and social distress, the rights to education, health care, housing, social security, food, water, and sanitation are increasingly at the top of the human rights agenda ...


On The Judicialization Of Health, Ana Santos Rutschman Jan 2019

On The Judicialization Of Health, Ana Santos Rutschman

Washington University Global Studies Law Review

The provision of health care has long been at the forefront of domestic and international debates, philosophical inquiries, and political agendas. A growing body of legal scholarship has added to the debate by examining the role of judicial review in the context of health-related litigation. What role, if any, should courts play in compelling the provision of health care or in furthering access to potentially life-saving medicines?

This question intersects with multiple strands of the law. For instance, it has an institutional component that interrogates the function(s) of courts within systems of checks and balances. It ties into constitutional ...


Beyond Minimalism And Usurpation: Designing Judicial Review To Control The Mis-Enforcement Of Socioeconomic Rights, Pedro Felipe De Oliveira Santos Jan 2019

Beyond Minimalism And Usurpation: Designing Judicial Review To Control The Mis-Enforcement Of Socioeconomic Rights, Pedro Felipe De Oliveira Santos

Washington University Global Studies Law Review

Two opposing arguments–judicial restraint and judicial activism–have polarized the constitutional law debate on the judicial enforcement of socio-economic rights in developing countries. The former argues that judicial under-enforcement would be preferable to judicial over- enforcement of rights, so that courts should adopt weak remedies when implementing policies and legislation. The latter argues the contrary, prescribing strong review as an efficient mechanism of enforcement. Drawing on empirical research on the right to health care-related litigation in Brazil, this work presents evidence that constitutional law has fallen into a false dichotomy. Neither of these two arguments offers a complete account ...


Enforceability: Foreign Arbitral Awards In Chinese Courts, Mo Zhang Dec 2018

Enforceability: Foreign Arbitral Awards In Chinese Courts, Mo Zhang

San Diego International Law Journal

Enforcement of foreign arbitral awards in China has always been a widespread concern. There is not only a fear of deficiency in the Chinese legal system, but also a disconnection between foreign perception and Chinese reality. Since the nation joined the New York Convention in the 1980’s, China has made efforts to fulfill its treaty obligations. Foreign parties, however, remain skeptical about whether foreign arbitral awards will be fairly enforced in the country.

In 2015, the Supreme People’s Court of China (SPC) issued a judicial interpretation that contains provisions explicitly addressing several confusing and controversial matters on foreign ...


The "Guarantee" Clause, Ryan C. Williams Dec 2018

The "Guarantee" Clause, Ryan C. Williams

Boston College Law School Faculty Papers

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...


Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena Nov 2018

Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena

Boston College Law Review

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance ...


Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei Oct 2018

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...


Tort Reform With Chinese Characteristics: Towards A Harmonious Society In The People's Republic Of China, Andrew J. Green Sep 2018

Tort Reform With Chinese Characteristics: Towards A Harmonious Society In The People's Republic Of China, Andrew J. Green

San Diego International Law Journal

This Article presents an analysis of tort law in China specifically focusing on personal injury tort law. It provides a general background on the role of tort law in society, and then it analyzes the specific laws, regulations, and cases that form the personal injury tort regime, covering both historical and recent laws. The article then explores the forces in society and politics that seem to be behind the new legal rules. It concludes by drawing attention to several steps that may be taken as part of further reform.


The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako Aug 2018

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers ...


Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo Aug 2018

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming Jun 2018

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Robert B. Ahdieh

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward ...


Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh Jun 2018

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Robert B. Ahdieh

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found ...


Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing May 2018

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems ...


Concluding Remarks, Leo M. Romero Apr 2018

Concluding Remarks, Leo M. Romero

Leo Romero

No abstract provided.


Procedures For Investigating And Prosecuting White Collar Crime, Leo M. Romero Apr 2018

Procedures For Investigating And Prosecuting White Collar Crime, Leo M. Romero

Leo Romero

No abstract provided.


Double Sovereignty In Europe? A Critique Of Habermas's Defense Of The Nation-State, Vlad F. Perju Apr 2018

Double Sovereignty In Europe? A Critique Of Habermas's Defense Of The Nation-State, Vlad F. Perju

Boston College Law School Faculty Papers

Jürgen Habermas’s influential account of the transnationalization of democracy is typically seen as a bold attempt to articulate the political-philosophical foundations of European integration. Habermas posits an identity split between individuals as citizens of their nation states and (the same) individuals as members of the future European Union. According to the dual sovereignty thesis, nation states and the EU are co-original and co-determinate.

I challenge this conception on two grounds. First, split identity is a source of fragmentation that subverts the transnationalization of democracy. It would be irrational for EU citizens to partake in a project that empowers states ...


Introduction: Globalization, Power, States, And The Role Of Law, Frank J. Garcia Mar 2018

Introduction: Globalization, Power, States, And The Role Of Law, Frank J. Garcia

Frank J. Garcia

On October 12, 2012 the Boston College Law Review and the Boston College International and Comparative Law Review held a joint Symposium entitled, “Filling Power Vacuums in the New Global Legal Order.” In three panel discussions and a keynote address by Anne-Marie Slaughter, a lively discourse on the impact of globalization on state power, the law, and the law’s ability to both reallocate and effectively restrain power ensued. This Introduction, and the works that follow in this symposium issue, document that discourse.