Other Law Commons^™

Refugee Credibility Assessment And The “Religious Imposter” Problem, Michael Kagan

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Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in …

Queer Lockdown: Coming To Terms With The Ongoing Criminalization Of Lgbtq Communities, Ann Cammett

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The criminal justice system exacts a toll on some Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) communities. The experience of living in poverty and the concomitant exposure to a variety of governmental systems puts all poor, but especially LGBTQ low-income people of color, at risk of incarceration. What typically goes unexamined are the myriad ways that LGBTQ people are drawn into and experience the carceral system because of sexual identities and expression. This negative effect surfaces at every conceivable level: the marginalization and subsequent criminalization of queer youth; anti-gay bias in the judicial system; the rerouting of domestic violence cases …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

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In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

The Immigrant Rights Marches (Las Marchas): Did The “Gigante” (Giant) Wake Up Or Does It Still Sleep Tonight?, Sylvia R. Lazos

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This article documents the genesis of the March 2006 immigrant rights protests and analyzes their impact. Las Marchas were truly spontaneous grassroots protests, the largest massive civil rights mobilization effort for a single event in the United States to date. This paper provides a macro- and micro-analysis of the forces that account for this success. First, the catalyst, HR 4437, a bill that was successfully approved by the House of Representatives would have criminalized illegal presence. This law was perceived as unjust, and engendered a debate around immigrant rights debate in terms with universal and simple appeal, human dignity, the …

Emerging Latina/O Nation And Anti- Immigrant Backlash, Sylvia R. Lazos

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This foreword is an introduction to the LatCrit XI, Working and Living in the Global Playground: Frontstage and Backstage symposium, convened at William S. Boyd School of Law, in Las Vegas Nevada, during October 2006 and called upon over 150 academics to focus on the impacts of globalization and immigration. At no time has LatCrit's critical approach of interconnecting the structures of inequality, the market forces of globalization, and the cultural hostility towards outsider groups been more relevant.

Backlash against immigrants, particularly Latina/o “illegals,” is on the rise. This Introduction seeks to outline the challenges that the current immigration quandary …

Frontier Justice: Legal Aid And Unhcr Refugee Status Determination In Egypt, Michael Kagan

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Where UNHCR conducts refugee status determination (RSD), its reactions to legal aid for asylum-seekers have been mixed. Statistical evidence collected from Egypt in 2002 indicates a correlation between receiving some form of legal aid service and an asylum-seeker's increased chances of gaining refugee protection from UNHCR. Unconventional forms of legal aid, including limited services by supervised non-lawyers (including volunteers from the refugee community) showed a positive impact on first instance cases, while traditional legal aid models showed an impact at the appeal stage. Legal aid should form an essential part of UNHCR's RSD procedures, and NGOs should work to expand …

The Beleaguered Gatekeeper: Protection Challenges Posed By Unhcr Refugee Status Determination, Michael Kagan

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The number of individual Refugee Status Determination (RSD) applications received by United Nations High Commissioner for Refugees (UNHCR) offices worldwide nearly doubled from 1997 to 2001, while UNHCR’s RSD operations have been criticized for failing to implement basic standards of procedural fairness. Yet, although there is some literature critiquing how UNHCR determines refugee status, there is little literature examining whether UNHCR should do so, and if it should, when, where, and under what conditions.

UNHCR performance of RSD poses protection challenges because it is founded on a basic contradiction. On the one hand, government action is essential for effective refugee …

Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens

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Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …

Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett

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The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

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In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

Persecution In The Fog Of War: The House Of Lords’ Decision In Adan, Michael Kagan, William P. Johnson

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International law requires that a refugee have a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. It is not enough to be at risk of being persecuted, nor is it even enough to be a member of a particular race or religion. There must be a “nexus” between the danger and one of the five Convention-recognized reasons for persecution. In the 1998 decision in Adan v. Secretary of State for the Home Department, the House of Lords concluded that a man fleeing clan warfare in Somalia could not …

Missouri, The “War On Terrorism,” And Immigrants: Legal Challenges Post 9/11, Sylvia R. Lazos

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This article explains how the 2000 census confirmed what many already knew--the traditional image of what it means for Missouri to be a heartland state is changing. The 2000 census shows that the fastest growing racial/ethnic group in Missouri are Latinos. This growth in first generation immigrants has not been limited to Missouri's large urban centers. In rural Missouri and its small towns, the major group of first generation immigrants is Latinos.

Critical Race Theory And Autobiography: Can A Popular Genre Make A Serious Academic Contribution?, Sylvia R. Lazos

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This Essay reviews “Notes of a Racial Caste Baby, Colorblindness and the End of Affirmative Action” by Bryan K. Fair, “How Did You Get to Be a Mexican? a White/Brown Man's Search for Identity” by Kevin R. Johnson, and “To be an American: Cultural Pluralism and the Rhetoric of Assimilation” by Bill Ong Hing. This Essay examines the potential contributions each book makes to legal scholarship and the popular press. The Essay first describes how each author uses the autobiographical narrative and what these narratives accomplish. The Essay examines each book's legal agenda and assesses how well each author achieves …

Globalization Or Global Subordination? Latcrit Links The Global To The Local And The Local To Global, Sylvia R. Lazos

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Professor Lazos introduces the fifth and final cluster of this LatCrit IV Symposium, International Linkages and Domestic Engagement, which includes five important contributions to LatCrit IV's focus on global issues by Professors Timothy Canova, Gil Gott, Tayyab Mahmud, Ediberto Roman, and Chantal Thomas. The introduction below sketches out, by way of illustration only, how some of the work already presented in this symposium cultivates the linkage between local racial formation and global market dynamics. The introduction then explores LatCrit's contribution to the critique of globalism.

Democracy And Inclusion: The Role Of The Judge In A Pluralist Polity, Sylvia R. Lazos

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The Supreme Court plays a critical role in resolving clashes between majority and minority interests and perspectives. The Equal Protection Clause, and at times the Due Process Clause, have become key vehicles for considering the most problematic intergroup conflicts that divide our society. Prior to this article, the Court heard cases dealing with affirmative action in government procurement programs, legislative districts designed to increase minority representation, state sponsored male-only military schooling, and a state constitutional amendment that would have proscribed antidiscrimination legislation protecting gay men and lesbians. While the Court declined to challenge California's anti-affirmative action referendum (Proposition 209) and …

La Preuve Pénale Et Des Tests Génétiques: United States Report, Christopher L. Blakesley

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A major problem for those analyzing U.S. criminal law and procedure is that it does not fit the Continental or British mold. There is no one single system, but parallel federal and 50 state systems each with its own legislature, laws, courts (including trial, appellate, and supreme courts), police, prosecutors and prisons. The authorities who enact and implement these laws are sovereign within their respective jurisdictions. Each state has police power over its people. The 10th amendment to the U.S. Constitution controls allocation of federal and state authority. It provides that whatever the Constitution has not designated as being within …

Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos

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This Article examines why the assumption of sameness is so pervasive in our society, and why the very idea of diversity is so resisted. The assumption and the corollary mandate to be the same are embedded in American cultural ideology, in how Americans think of themselves, in the stories that we tell regarding who we are and where we come from, in how we construct our values and norms, and in how Americans make sense of our chaotic social world. The assumption and mandate of sameness not only influence American culture, they also guide judges' thinking and decision-making in key …

Prosecuting And Defending Violations Of Genocide And Humanitarian Law: The International Tribunal For The Former Yugoslavia, Christopher L. Blakesley

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A symposium discussing the international war crimes tribunal for the former Yugoslavia, established by the United Nations Security Council’s . Christopher L. Blakesley discussed the procedural aspects of the War Crimes Tribunal.

Obstacles To The Creation Of A Permanent War Crimes Tribunal, Christopher L. Blakesley

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Individual liability for war crimes is difficult to enforce and is unlikely to be accepted uniformly by states.

Individual criminal responsibility is the cornerstone of any international war crimes tribunal. Nuremberg Principle I provides that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Acts by heads of state or other government officials, even if committed in an official capacity, may not constitute an immunity defense to or mitigate criminality. These officials, therefore, could also be held responsible for offenses committed pursuant to their orders. Additionally, liability for criminal …

State Support Of International Terrorism: Legal, Political And Economic Dimensions, Christopher L. Blakesley

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In this piece, Professor Blakesley reviews “State Support of International Terrorism: Legal, Political, and Economic Dimensions” by John F. Murphy.

The Need For An International Criminal Court In The New International World Order, Christopher L. Blakesley

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Any inquiry into the merits of an international criminal court must start with resolving three basic issues:

1. Can the tribunal improve international cooperation in law enforcement, add to the capabilities of the various nations in matters of international criminal law, or contribute in any incremental way to the solution of international and transnational criminal law problems by improving the current practice and enhancing the effectiveness of all concerned?

2. Will the recommended system have a better or equal chance of operating as effectively as the best existing systems of national criminal justice?

3. Will the recommended system improve efficiency …

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley

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This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

The authors first analyze the five …

The Modern Blood Feud: Thoughts On The Philosophy Of Terrorism, Christopher L. Blakesley

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Herman Melville brilliantly lets us feel, through Captain Ahab, the sensation of destructive rage, hatred and violence. Sadly, Melville's insight penetrates to the core of society, perhaps of each of us, in today's omnipresent terroristic melodrama. We have all suffered moments of vicarious terror and rage over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. The melodrama of terrorism has penetrated each of our lives. We see it and feel the rage nearly on a daily basis. Innocent children, women and men aboard Pan …

Major Contemporary Issues In Extradition Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on high crimes in international law, and the ability to extradite state and high government officials for committing them.

Terrorism, Law, And Our Constitutional Order, Christopher L. Blakesley

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We have all suffered moments of vicarious terror over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. There, some institution, government, or group used innocent children, women, and men as fodder for their “war.” Some have claimed that the pusillanimous carnage was in retaliation for the slaughter of equivalent innocents aboard the Iranian Air Bus, similarly destroyed by American forces during the summer of 1988. Others suggested that it was committed by those interested in thwarting prospects of peace in the Middle East.

Combatting …

Jurisdiction As Legal Protection Against Terrorism, Christopher L. Blakesley

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On June 14, 1985, Robert Stethem was shot to death aboard a hijacked TWA airliner. On October 7, 1985, the Italian cruise-liner, Achille Lauro, was hijacked and the next day Leon Klinghofer was killed and thrown overboard. On Julyu 2, 1986, Rodrgio Rojas was mortally wounded when he was doused with gasoline and set afire while walking with protesters in Santiago, Chile. Soviets are said to leave booby-trapped dolls for Afghan Moujahadeen children. There is evidence that the United States government directly supports the Nicaraguan contras who, in waging their guerilla war, allegedly have killed innocent citizens. It is …

An Essay On Executive Branch Attempts To Eviscerate The Separation Of Powers, Christopher L. Blakesley

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The Reagan Administration has been aggressively attempting to arrogate power to the Executive branch and to undermine the separation of powers in the realms of foreign affairs. To Chain the Dog of War shows that for decades the Executive branch has moved to appropriate Congress’ war powers. The Reagan Administration not only has continued that tradition, but also has attempted to erode the Judiciary’s power to decide questions of law and fact concerning human rights and liberty in international extradition cases involving political offenses. The underlying rationale for this shift has been that decisions to make war or to condemn …

The Evisceration Of The Political Offense Exception To Extradition, Christopher L. Blakesley

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The Supplementary Convention to the Extradition Treaty between the Government of the United States of American and the Government of the United Kingdom of Great Britain and Northern Ireland, was signed on June 25, 1985, and transmitted to the U.S. Senate on July 17, 1985. This article will focus on the portion of the supplementary treaty which effectively eliminates the political offense exception, and on the statement made by the Legal Adviser to the Department of State, the honorable Judge Abraham D. Sofaer, made in favor of the Supplementary Treaty, on August 1, 1985. This article suggests that approval of …