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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 …


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. …


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.


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 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. …


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 …


Proportionality, Reasonableness, And Economic And Social Rights, Katharine G. Young Jan 2017

Proportionality, Reasonableness, And Economic And Social Rights, Katharine G. Young

Boston College Law School Faculty Papers

For its proponents, proportionality analysis is integral to a new "global model of constitutional rights." If economic and social rights are part of that global model, a suggestion supported by recent empirical analysis, there are numerous sites on which to establish the proportionality analysis. And yet, the comparative economic and social rights jurisprudence reveals little resembling proportionality analysis, otherwise so "ubiquitous" in constitutional rights adjudication. Instead, the adjudication of economic and social rights integrates notions of proportionality in a seemingly indirect faction, through giving substance to standards of "reasonableness," "appropriate measures," and "progressive realization...according to maximum available resources." These standards …


Development, Frank J. Garcia Jan 2016

Development, Frank J. Garcia

Boston College Law School Faculty Papers

Development is about aspiration—our longing for a better life as individuals and as a community—and respect, as we individually and collectively recognize and support these aspirations. Development requires the freedom to define and choose that better life; a fair share of the resources needed to realize that life; and narratives of where we currently stand with regard to our aspirations and why, where we want to go, and what it will take to get there. This means that development inevitably takes place in and through politics, law, and the social sciences (especially economics), as we work to articulate our claims …


Rights And Queues: On Distributive Contests In The Modern State, Katharine G. Young Jan 2016

Rights And Queues: On Distributive Contests In The Modern State, Katharine G. Young

Boston College Law School Faculty Papers

Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique …


The Forgotten Deported: A Declaration On The Rights Of Expelled And Deported Persons, Daniel Kanstroom, Jessica Chicco Apr 2015

The Forgotten Deported: A Declaration On The Rights Of Expelled And Deported Persons, Daniel Kanstroom, Jessica Chicco

Boston College Law School Faculty Papers

This article considers a “Declaration on the Rights of Expelled and Deported Persons.” Drafted by the authors with significant input from a wide array of scholars, activists, judges, and others, this Declaration, re-printed in Appendix A, responds to what has become in recent years a major worldwide phenomenon: The deportation (also known as removal or expulsion) of large numbers of noncitizens. Our aim, first, is to describe that phenomenon and to illustrate some of its most troubling features. We then survey existing legal structures and mechanisms that seek to protect some of the rights of the deported, both during and …


The Avoidance Of Substance In Constitutional Rights, Katharine G. Young Jan 2015

The Avoidance Of Substance In Constitutional Rights, Katharine G. Young

Boston College Law School Faculty Papers

Avoidance, on the part of the judiciary, calls to mind a number of judicial postures. For Brian Ray, in his recent article “Evictions, Avoidance and the Aspirational Impulse” in South Africa’s Constitutional Court Review, avoidance signals an active posture of economic and social rights decision-making that limits the substantive development of constitutional doctrine, cedes to current legislation or policy the frame of rights analysis, and deliberately marginalizes the judicial role. While celebrating Ray’s ability to link disparate features of the South African Constitutional Court’s jurisprudence - the use of reasonableness review, the creation of new procedural remedies, the deployment of …


What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo Dec 2014

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

Boston College Law School Faculty Papers

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension …


Reconstructing Constitutional Punishment, Paulo D. Barrozo Jul 2014

Reconstructing Constitutional Punishment, Paulo D. Barrozo

Boston College Law School Faculty Papers

Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political …


The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring Jun 2014

The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

This article begins to explore the legal and policy implications of a new form of financing -- income sharing agreements -- which have raised concerns that the effectively created "equity" in humans.


Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield Mar 2014

Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield

Boston College Law School Faculty Papers

Amicus brief filed by Nancy Gertner and Kent Greenfield in the case of Louisiana Municipal Police Employees' Retirement System v. The Hershey Company, C.A. No. 7996-ML.


"Conditional Admission" And Other Mysteries: Setting The Record Straight On The "Admission" Status Of Refugees And Asylees, Laura Murray-Tjan Jan 2014

"Conditional Admission" And Other Mysteries: Setting The Record Straight On The "Admission" Status Of Refugees And Asylees, Laura Murray-Tjan

Boston College Law School Faculty Papers

Hundreds of thousands of U.S. residents live in the country lawfully and indefinitely but are not citizens. The rules governing the lives and freedom of these residents vary depending on their immigration status. This Article explores the boundaries of and rules attaching to two such important groups–resettled refugees and asylees–and explains why they must be deemed (unconditionally) admitted under the Immigration and Nationality Act. Whether a noncitizen is deemed “admitted” often determines whether he or she will be deported–banished–from the United States. It also may determine whether the noncitizen is subject to months or years of incarceration during resolution of …


The New Economic And Social Rights, Katharine G. Young Dec 2013

The New Economic And Social Rights, Katharine G. Young

Boston College Law School Faculty Papers

This short paper, delivered at the American Society of International Law’s 107th Annual Meeting in 2013, summarizes for the international lawyer the recent legal repositioning of economic and social rights. Three trends – of the new wave of constitutionalism, new models of adjudication, and innovations from the Global South – are described, as precursors to the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The conceptual map concludes with the difficult prognosis of measuring the success of experiments in economic and social rights advocacy and reform.


The Comparative Fortunes Of The Right To Health: Two Tales Of Justiciability In Colombia And South Africa, Katharine G. Young Nov 2013

The Comparative Fortunes Of The Right To Health: Two Tales Of Justiciability In Colombia And South Africa, Katharine G. Young

Boston College Law School Faculty Papers

No abstract provided.


A Reply To Jamal Greene, Katharine G. Young Oct 2013

A Reply To Jamal Greene, Katharine G. Young

Boston College Law School Faculty Papers

No abstract provided.