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Redemption Localism, Daniel Farbman Jun 2022

Redemption Localism, Daniel Farbman

Boston College Law School Faculty Papers

In the decades after the end of the Civil War, avowed white supremacists across the South sought to “redeem” their state and county governments from the clutches of the hated “radicals” who had taken control during Reconstruction. These Redeemers developed an approach to local power and local control that served their broader political goal of reestablishing white supremacist rule. In their effort to ensure that white citizens were not subjected to “negro rule,” they developed a “Redemption Localism” that consistently sought to limit local power, curtail local democracy, and defund or eliminate local services. This Article tells the story of …


Rethinking Foreign Affairs Deference, Elad D. Gil May 2022

Rethinking Foreign Affairs Deference, Elad D. Gil

Boston College Law Review

How should courts handle cases that implicate foreign relations or national security? What weight should courts give to the executive branch’s view of the law in these matters? To date, one can identify in the jurisprudence of the U.S. Supreme Court no less than four theoretical approaches—varying by the degree of judicial deference due to the executive—that suggest competing visions about the constitutional role of courts in these areas. Each approach has been criticized fiercely for either abdicating the constitutional duty of the courts or obstructing the nation’s pursuit of its security and foreign policy objectives. Absent a clear principle …


Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Laura C. Hoffman, Megan S. Wright, Joseph J. Fins May 2022

Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Laura C. Hoffman, Megan S. Wright, Joseph J. Fins

Boston College Law Review

The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the …


Indiana Jones And The Illicit Excavation And Trafficking Of Antiquities: Refining Federal Statutes To Strengthen Cultural Heritage Protections, Marina F. Rothberg Apr 2022

Indiana Jones And The Illicit Excavation And Trafficking Of Antiquities: Refining Federal Statutes To Strengthen Cultural Heritage Protections, Marina F. Rothberg

Boston College Law Review

Most nations consider the protection of cultural material, such as historical monuments, archaeological sites, and antiquities, to be of utmost consequence. Yet, despite the near-universal importance of safeguarding cultural heritage, domestic protections for cultural material in the United States tend to be difficult to interpret. These ambiguities and gaps allow for continued exploitation and illicit trafficking of cultural heritage. This Note focuses on the legal structures in the United States that safeguard indigenous cultural material. After briefly discussing the rationale behind safeguarding objects of heritage, this Note explores the dominant federal statutes that protect cultural material: the National Historic Preservation …


Accountable To None? Challenging Sovereign Immunity Through The Trafficking Victims Protection Act, Heather Odell Apr 2022

Accountable To None? Challenging Sovereign Immunity Through The Trafficking Victims Protection Act, Heather Odell

Boston College Law Review

Although amendments to the Trafficking Victims Protection Act (TVPA) have opened the door to greater corporate liability, government liability under the TVPA remains murky. A critical barrier that plaintiffs suing government entities confront is the broad protection from suit that states enjoy under the Eleventh Amendment. One of the few exceptions to this protection is congressional abrogation of state sovereign immunity. In 1996, the Supreme Court held in Seminole Tribe of Florida v. Florida that to abrogate state sovereign immunity, Congress must do so pursuant to a valid source of power. It further held that this valid source includes Congress’s …


Transnational Migration Deterrence, Anita Sinha Apr 2022

Transnational Migration Deterrence, Anita Sinha

Boston College Law Review

The governance of global migration increasingly relies on what critical migration scholarship refers to as externalized control. Externalization encompasses limiting human mobility through the imposition of migration control measures by transit states, as well as by states that are geographically proximate to destination states. Destination states are at a minimum complicit in the creation and operation of these externalized migration control systems. To capture this phenomenon, this Article offers a reconceptualization of externalization as transnational migration deterrence. The objective of this nomenclature is to provide a framework that highlights the role of destination states, to build a lexicon of accountability …


Book Review: Forever Prisoners: How The United States Made The World’S Largest Immigration Detention System, Mary P. Holper Nov 2021

Book Review: Forever Prisoners: How The United States Made The World’S Largest Immigration Detention System, Mary P. Holper

Boston College Law School Faculty Papers

This is a book review written by Professor Holper of a new book about immigration detention by Elliot Young, titled Forever Prisoners: How the United States Made the World’s Largest Immigration Detention System.


“Either I Close My Eyes Or I Don’T”: The Evolution Of Rights In Encounters Between Sovereign Power And “Rightless” Migrants, Daniel Kanstroom Aug 2021

“Either I Close My Eyes Or I Don’T”: The Evolution Of Rights In Encounters Between Sovereign Power And “Rightless” Migrants, Daniel Kanstroom

Boston College Law School Faculty Papers

Harsh migration enforcement has sparked courageous humanitarian reactions and hundreds of criminal prosecutions. Such prosecutions ostensibly seek to vindicate the power of governments to control nation-state borders. But they seem, ironically, to have achieved the opposite: They have vindicated, reinvigorated – and even inspired new forms of – basic human rights. This chapter examines three cases: Cédric Herrou, a French olive farmer who was criminally tried for assisting unauthorized migrants in France; German “rescue” ship captains, Carola Rackete and Pia Klemp, prosecuted for rescuing distressed migrants at sea and bringing them to Lampedusa, Italy; and Scott Warren, prosecuted after allegedly …


What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo Barrozo Jun 2021

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo Barrozo

Boston College Law School Faculty Papers

Transitional justice is the complex set of practices and processes that is supposed to help societies transition from atrocity into a post-atrocity, better future. It has also been more thinly defined as a transition from one political regime to the next. Transitional justice practices and processes have embraced, in different degrees, the form of law. Law in this context has been both generative and generated in fora: for constitutional reform; for demanding and receiving accounts from perpetrators of atrocities; for giving victims an opportunity to name and recount their personal tragedies and receive reparation; for retributive, consequentialist, and symbolic punishment; …


The New Managerialism: Courts, Positive Duties, And Economic And Social Rights, Katharine G. Young Apr 2021

The New Managerialism: Courts, Positive Duties, And Economic And Social Rights, Katharine G. Young

Boston College Law School Faculty Papers

An inseparable component of liberal constitutionalism is the respect accorded to so-called negative rights, which rest on duties of government restraint. But just as governments must have their hands tied, in this model, they must also work to secure rights, by actively and effectively planning, regulating, budgeting, and monitoring. These positive duties are particularly pronounced for so-called positive rights, which guarantee access to goods, services and opportunities such as social security, education, health care, land, food, water, sanitation, or to a clean environment. Of course, it is clear that so-called negative rights require both duties of commission and restraint; just …


The Canons Of Social And Economic Rights, Katharine G. Young Apr 2021

The Canons Of Social And Economic Rights, Katharine G. Young

Boston College Law School Faculty Papers

Social and economic rights occupy an unsettled place in any global canon of constitutional democracy and human rights. This Article, appearing in a collection of Global Canons in an Age of Uncertainty (S. Choudhry, M. Hailbronner & M. Kumm, eds., OUP) recommends a contender for canonical status, at the same time as it problematizes the search. Insofar as the search for a canon reveals the boundaries of what may be considered exemplary claims of constitutional and democratic practice, the 2000 South African case of Republic of South Africa v. Grootboom is canonical for its treatment of social and economic rights. …


Housing As A Right In The United States: Mitigating The Affordable Housing Crisis Using An International Human Rights Law Approach, Maria Massimo Jan 2021

Housing As A Right In The United States: Mitigating The Affordable Housing Crisis Using An International Human Rights Law Approach, Maria Massimo

Boston College Law Review

Throughout its history, the United States has perpetuated a double standard in regard to international human rights by urging other nations to protect and promote these rights, while simultaneously forgoing international human rights treaties in favor of its own Constitution and domestic human rights laws. Notably, the United States does not recognize one of the fundamental rights introduced by the Universal Declaration of Human Rights in 1948 and contained in the International Covenant on Economic, Social and Cultural Rights: The right to adequate housing. Failure to recognize housing as a human or constitutional right has led to a worsening affordable …


Core Criminal Procedure, Steven Arrigg Koh Nov 2020

Core Criminal Procedure, Steven Arrigg Koh

Boston College Law School Faculty Papers

Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.

This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the …


The Idea Of A Human Rights-Based Economic Recovery After Covid-19, Katharine G. Young Nov 2020

The Idea Of A Human Rights-Based Economic Recovery After Covid-19, Katharine G. Young

Boston College Law School Faculty Papers

The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This Article argues that the human rights to life, health, education, social security, housing, food, water and sanitation – the so-called economic and social rights – are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties …


Book Review: How Constitutional Rights Matter By Adam Chilton And Mila Versteeg, Katharine G. Young Sep 2020

Book Review: How Constitutional Rights Matter By Adam Chilton And Mila Versteeg, Katharine G. Young

Boston College Law School Faculty Papers

The template of written constitutional rights has expanded across the world, and yet they operate as unevenly as do the formal organizations that are motivated to defend them. This book review, of Adam Chilton and Mila Versteeg’s, How Constitutional Rights Matter, (New York: Oxford University Press, 2020) celebrates the ambition of empirically assessing, on a global scale, the effectiveness of constitutional rights, and yet queries its assumptions. An important demarcation offered by the authors is between constitutional rights which support (and are defended by) organizations, like churches or trade unions, and constitutional rights which are defended primarily by individuals. …


Review Of When Misfortune Becomes Injustice: Evolving Human Rights Struggles For Health And Social Equality By Alicia Ely Yamin, Katharine G. Young Aug 2020

Review Of When Misfortune Becomes Injustice: Evolving Human Rights Struggles For Health And Social Equality By Alicia Ely Yamin, Katharine G. Young

Boston College Law School Faculty Papers

Review of When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality (Stanford University Press, 2020) by Alicia Ely Yamin and , Beyond Repair?: Mayan Women’s Protagonism in the Aftermath of Genocidal Harm (New Brunswick: Rutgers University Press, 2019) by Alison Crosby and M. Brinton Lykes.


Recalibrating The Scales: Balancing The Persecutor Bar, David Romanow Jan 2020

Recalibrating The Scales: Balancing The Persecutor Bar, David Romanow

Boston College Law Review

Just as U.S. asylum law accepts individuals fleeing persecution, it also excludes from eligibility those who have assisted or otherwise participated in the persecution of others under what is known as the “persecutor bar.” In applying the persecutor bar, courts look to whether the applicant’s conduct played any causal role in the persecution, whether the applicant knew that his conduct would have some causal effect on the persecution, and whether the conduct was voluntary. Because exclusionary provisions to asylum such as the persecutor bar are to be applied restrictively, U.S. jurisprudence wrongly ignores other key factors that are necessary in …


Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young Nov 2019

Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young

Boston College Law School Faculty Papers

In 2014, five-year old South African Michael Komape fell through a broken toilet—a rudimentary pit outfitted by his school—and drowned. His case was taken up by “SECTION27”, a social justice organization in South Africa, which campaigns for constitutional rights to dignity, equality, education, health care, social assistance, food and water (the latter rights are entrenched in the Constitution’s section 27). Pursuing both a #JusticeForMichael political campaign and litigation, SECTION27 won its argument about government liability, but failed in securing a remedy for Michael’s traumatized family.

The Komape case is emblematic of the complex interaction that can occur when economic and …


The Death Penalty And The Fundamental Right To Life, Kevin M. Barry Jun 2019

The Death Penalty And The Fundamental Right To Life, Kevin M. Barry

Boston College Law Review

For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment. But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process. The legal literature has followed suit, scarcely addressing the issue. This Article makes the case for why the death penalty violates the fundamental right to life. It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death …


The Ethical Bases Of Human Rights, Scott T. Fitzgibbon Mar 2019

The Ethical Bases Of Human Rights, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

Human rights have become the grounding of human solidarity. They are, today, the substance of the brotherhood of man. They take the place once occupied by "our common clay," our common ancestry, and our common relationship with the Deity.

This being the case, it is important to understand what, in turn, grounds human rights. There is nothing approaching a consensus: indeed, the impressive edifice on which much of the political order of the world now rests has been constructed based on the conscious decision by its principal authors to prescind from asking this basic question. Unsurprisingly under these circumstances, more …


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. …


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. …


The Circuit Split On Mens Rea For Aiding And Abetting Liability Under The Alien Tort Statute, Srish Khakurel Nov 2018

The Circuit Split On Mens Rea For Aiding And Abetting Liability Under The Alien Tort Statute, Srish Khakurel

Boston College Law Review

For decades since the Second Circuit Court of Appeals’ landmark decision in Filartiga v. Pena-Irala, the Alien Tort Statute has provided tools for human rights litigation in American federal courts. Nevertheless, after some controversial decisions by the U.S. Supreme Court and the Second Circuit in recent years, the scope of liability under the statute has diminished and the future of ATS human rights litigation is uncertain. In this context, one of the key issues is the level of culpability required for a defendant to be liable for assisting the human rights breaches of a third party. Specifically, the issue …


Property Rights As Human Rights In International Investment Arbitration: A Critical Approach, Enrique Boone Barrera Nov 2018

Property Rights As Human Rights In International Investment Arbitration: A Critical Approach, Enrique Boone Barrera

Boston College Law Review

The treaty-based regime of investment protection is said to protect the property rights of foreign investors. Arbitral tribunals are usually tasked with settling investment disputes using principles of international law, some of which refer to the doctrine of protection of aliens. These features have led some commentators to compare the protection of foreign investment with the protection of property rights by human rights instruments and courts. This Essay provides a critical perspective on the relationship between these two systems. The Essay re-examines the widespread assumptions that underlie efforts to find parallels between human rights and foreign investment protection. The analysis …


Justice For All? Protecting The Public Interest In Investment Treaties, Alessandra Arcuri, Francesco Montanaro Nov 2018

Justice For All? Protecting The Public Interest In Investment Treaties, Alessandra Arcuri, Francesco Montanaro

Boston College Law Review

Investment arbitration has come increasingly under fire because of its design flaws. There is an emerging consensus that investment treaty arbitration not only falls short of ensuring a sufficient degree of transparency of arbitral proceedings and impartiality of arbitrators, but also that its institutional architecture is unjustifiably asymmetric, entrusting foreign investors with significant rights while no protection is afforded to the host states’ constituencies. In response to these criticisms, several states have attempted in recent years to reform the rules governing investor-state arbitration. A perusal of recently concluded international investment agreements, however, reveals that the reform efforts so far have …


I Wanna Design For Somebody (Who Needs Me): The Intersection Of Humanitarian Engineering, Choice-Of-Law, And Technology Transfer In Kenya, Sean Patrick Mcginley Nov 2018

I Wanna Design For Somebody (Who Needs Me): The Intersection Of Humanitarian Engineering, Choice-Of-Law, And Technology Transfer In Kenya, Sean Patrick Mcginley

Boston College Law Review

A significant technology gap exists between developed and developing countries. Though developing countries have started to self-innovate, they do not possess adequate means to fulfill their right to develop, which the UN recognizes as an essential human right. For developing countries to exercise this right, developed countries must transfer technology. Humanitarian engineers have confronted this challenge without any international guidance or regulation, as no uniform system for international technology transfer agreements exists. To remedy this inadequacy, scholars have proposed the characteristic approach, which suggests that the contents of the contract, rather than the parties’ locations, should control the choice of …


On Uses And Misuses Of Human Rights In European Constitutionalism, Vlad F. Perju Oct 2018

On Uses And Misuses Of Human Rights In European Constitutionalism, Vlad F. Perju

Boston College Law School Faculty Papers

No abstract provided.


The Immediacy Of Economic And Social Rights, Katharine Young May 2018

The Immediacy Of Economic And Social Rights, Katharine Young

Boston College Law School Faculty Papers

No abstract provided.


Weaponizing Misery: The 20-Year Attack On Asylum, Kari E. Hong Jan 2018

Weaponizing Misery: The 20-Year Attack On Asylum, Kari E. Hong

Boston College Law School Faculty Papers

The Trump Administration is attacking asylum seekers—both in words and in deeds. In Attorney General Sessions’s speech against “dirty immigration lawyers,” for whom he blames for the rampant “fraud and abuse” in the system, the Attorney General highlighted policy initiatives undertaken by the Trump Administration to deter, delay, and deny asylum applicants who are seeking protections. This Article identifies the Trump Administration’s new policies and practices and criticizes those that impose irrational or unnecessary burdens on asylum seekers.

More salient, however, is that the Trump Administration’s attack on asylum is not a break from past practices. To the contrary, for …


Saving Lives, Shalini Bhargava Ray Sep 2017

Saving Lives, Shalini Bhargava Ray

Boston College Law Review

When Alan Kurdi, a Syrian toddler, drowned in the Mediterranean while fleeing civil war in his home country, the world’s attention turned to the Syrian refugee crisis. Offers to transport and house refugees surged. Private boats set out on the Mediterranean Sea to rescue refugees dying in the water. A billionaire offered to purchase an island on which the refugees could live out their lives. This Article analyzes private humanitarian aid to asylum seekers, a subset of migrants whose claims for refugee protection have not yet been filed or adjudicated, and who typically travel without authorization. This Article determines that …