Law Commons^™

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Articles & Chapters

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission onHuman Rights.

In Asia and the Pacific region, however, there is no such body. Many reasons have …

Less Than We Might: Meditations On Life In Prison Without Parole, Robert Blecker

Articles & Chapters

Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for the worst of the worst. These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a punishment worse than death.

Thousands of hours in several states, interviewing and observing more than a hundred convicted killers, along with dozens of correctional officers who …

Global Finance, Multinationals And Human Rights: With Commentary On Backer's Critique Of The 2008 Report By John Ruggie, Faith Stevelman

Articles & Chapters

No abstract provided.

As Old As The Hills: Detention And Immigration, Lenni Benson

Articles & Chapters

No abstract provided.

Imagine All The Women: Power, Gender And The Transformative Possibilities Of The South African Constitution, Penelope Andrews

Articles & Chapters

This chapter will explore the South African Constitution, and more particularly, the Bill of Rights, as a vehicle for social and economic transformation. By analyzing the provisions relating to gender equality in South Africa's Constitution, as well as decisions of the Constitutional Court, this chapter will examine whether theconstitutional rights framework in South Africa contains within it the transformative possibilities that will lead to gender equality in all spheres of South African society, and particularly in the economic sphere.

The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill

Articles & Chapters

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The …

Globalization, Investing In Law, And The Careers Of Lawyers For Social Causes—Taking On Rights In Thailand, Frank W. Munger

Articles & Chapters

No abstract provided.

It’S Doom Alone That Counts: Can International Human Rights Law Be An Effective Source Of Rights In Correctional Conditions Litigation?, Michael L. Perlin, Henry A. Dlugacz

Articles & Chapters

Over the past three decades, the US judiciary has grown increasingly less receptive to claims by convicted felons about the conditions of their confinement while in prison. Although courts have not articulated a return to the 'hands off' policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation ofthe Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas ofprisoners' rights law.

From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate …

Introduction: International Review Of Constitutionalism Special Issue On Law, Poverty And Economic Inequality, Penelope Andrews, Frank W. Munger

Articles & Chapters

Editors introduction: This collection of articles by noted scholars examines what law and legal institutions can do to alleviate poverty and economic inequality in the new economic and political environment. The articles explore the contours of many struggles for distributive justice. They describe contemporary constitutional strategies, such as the incorporation of economic, social and cultural rights in constitutions in relation to grassroots anti-poverty campaigns in many parts of the world, including campaigns for rights in South Africa, and poor people's economic and human rights campaigns in the United States. Such campaigns face well-known disadvantages in contending with entrenched, powerful, and …

Introduction [Comments], Andrew Scherer

Articles & Chapters

No abstract provided.

Where The Home In The Valley Meets The Damp Dirty Prison: A Human Rights Perspective On Therapeutic Jurisprudence And The Role Of Forensic Psychologists In Correctional Settings, Astrid Birgden, Michael L. Perlin

Articles & Chapters

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues between offender rights and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. …

A Change Is Gonna Come: The Implications Of The United Nations Convention On The Rights Of Persons With Disabilities For The Domestic Practice Of Constitutional Mental Disability Law, Michael L. Perlin

Articles & Chapters

As recently as fifteen years ago, disability was not broadly acknowledged as a human rights issue. Although there were prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective1 the characterization of "disability rights" (especially the rights of persons with mental disabilities) was not discussed in a global public, political or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality …

Global Funder, Grassroots Litigator—Judicialization Of The Environmental Movement In Thailand, Frank W. Munger

Articles & Chapters

No abstract provided.

Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons withDisabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us to …

I Might Need A Good Lawyer, Could Be Your Funeral, My Trial: Global Clinical Legal Education And The Right To Counsel In Civil Commitment Cases, Michael L. Perlin

Articles & Chapters

The quality of counsel assigned to represent individuals facing involuntary civil commitment to psychiatric hospitals is, in most American jurisdictions, mediocre or worse. In many other nations, it is non-existent, or so minimal as to offer only the illusion of legal safeguards. (Perhaps) remarkably, there has been virtually no mention of this latter scandal in the legal literature. Also, there has been little attention paid to this development by the clinical education movement (domestically and globally).

A variety of interrelated factors, however, may shed some light on this scandal, and may, encouragingly, lead to social change in the future:

- …

Tolling For The Luckless, The Abandoned And Forsaked: Community Safety, Therapeutic Jurisprudence And International Human Rights Law As Applied To Prisoners And Detainees, Michael L. Perlin, Astrid Birgden

Articles & Chapters

There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing theextent to which the legal system serves therapeutic or anti therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. Human rights are based on legal, social, and moral rules. The paper will propose that human rights principles can add to the normative base of therapeutic jurisprudence, and in turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights. As duty bearers, forensic …

Everybody Is Making Love/Or Else Expecting Rain: Considering The Sexual Autonomy Rights Of Persons Institutionalized Because Of Mental Disability In Forensic Hospitals And In Asia, Michael L. Perlin

Articles & Chapters

One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves the resolution of difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures.

As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal justice system (either those who may be incompetent to stand …

Through The Wild Cathedral Evening: Barrier, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …

Killing Them Softly: Meditations On A Painful Punishment Of Death, Robert I. Blecker

Articles & Chapters

This brief essay argues that any attempt by the U.S. Supreme Court and others to establish a painless punishment, especially lethal injection, fails logically and morally.

From the beginning, by definition, etymologically and existentially, “punishment” and “pain” have been inseparably connected. Those who advocate ‘painless punishment’ call for contradiction. Whether looking to the future (utilitarians) or the past (retributivists), we once clearly understood and embraced the inseparable connection between punishment and pain. Gradually, however, punishment has morphed into something which denies its own nature, culminating in today's move toward a massive dose of anesthetic as the ultimate punishment - as …

Humanity Law: A New Interpretive Lens On The International Sphere, Ruti Teitel

Articles & Chapters

No abstract provided.

Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …

Culture, Power, And Law: Thinking About The Anthropology Of Rights In Thailand In And Era Of Globalization, Frank W. Munger

Articles & Chapters

No abstract provided.

The Rule Of Law And The Military Commission, Stephen J. Ellmann

Articles & Chapters

This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role …

International Human Rights And Comparative Mental Disability Law: The Universal Factors, Michael L. Perlin

Articles & Chapters

An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.

These are the factors …

International Human Rights And Comparative Mental Disability Law: The Role Of Institutional Psychiatry In The Suppression Of Political Dissent, Michael L. Perlin

Articles & Chapters

For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons …

Some Middle-Age Spread, A Few Mood Swings, And Growing Exhaustion: The Human Rights Movement At Middle Age, Penelope Andrews

Articles & Chapters

This paper was presented at a symposium, "The Scholar as Activist", dedicated to the work of Nadine Strossen, President of the ACLU. This paper focuses on the subject of international human rights law and the engagement of scholars as activists in this area of law. At fifty-plus years, and therefore soundly middle aged, the global human rights project today provides occasion for reflection and evaluation. This paper observes that human rights have increasingly become the language of progressive politics. In many ways, this focus on human rights globally echoes the struggle for civil liberties and civil rights in the United …

You Got No Secrets To Conceal: Considering The Application Of The Tarasoff Doctrine Abroad, Michael L. Perlin

Articles & Chapters

No abstract provided.

The Law And Politics Of Contemporary Transitional Justice, Ruti Teitel

Articles & Chapters

Slobodan Milosevic, Saddam Hussein, Hissene Habre, Augusto Pinochet, Charles Taylor. There have never been more political leaders in the dock, or, under the shadow of its threat. Of what significance are these contemporary instances of transitional justice? This article uses the trials of Slobodan Milosevic and Saddam Hussein as an occasion for revisiting and extending my ongoing project of tracing a genealogy of transitional justice.

In prior work, I have defined "transitional justice" as that conception of justice associated with periods of political change. In an ongoing genealogy, I tie the legal developments in this area to distinct political phases …

The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard

Articles & Chapters

The Supreme Court's decision in Lawrence v. Texas (2003) marked the first time that tribunal took notice of how foreign and international courts were dealing with the civil rights claims of lesbians and gay men as part of its discussion of American constitutional law. If this evinces a new openness by the Court to looking at such external sources in gay rights cases, what would it find on the major legal issues now facing the LGBT community in the United States? This article summarizes developments abroad on legal recognition of same-sex partners (including for purposes of immigration status) and military …

Reflections On The Essential Role Of Legal Scholarship In Advancing Causes Of Citizen Groups, Nadine Strossen

Articles & Chapters

No abstract provided.