Law Commons^™

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …

Justice Brennan And The Foundations Of Human Rights Federalism, James A. Gardner

Journal Articles

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights …

The 'New Selma' And The Old Selma: Arizona, Alabama, And The Immigration Civil Rights Movement In The Twenty-First Century, Kristina M. Campbell

Journal Articles

In his unfinished manuscript, “The Politics of Expulsion: A Short History of Alabama’s Anti-Immigrant Law, HB 56,” the late Raymond A. Mohl, Distinguished Professor of History at the University of Alabama at Birmingham, directly and succinctly identified the true nature of the motivations behind the passage of HB 56 in the Alabama legislature. Professor Mohl observed that “nativist fears of large numbers of ethnically different newcomers, especially over job competition and unwanted cultural change, sometimes referred to as “cultural dilution,” provided political cover for politicians who sought to control and regulate immigration within state borders, but also to push illegal …

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Journal Articles

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod

Journal Articles

This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

Book Review, Douglass Cassell

Journal Articles

Reviewing Federico Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (2014)

Fabbrini’s study sheds valuable light on the dynamics that shape the interactions among multiple levels of human rights protection in Europe, and on the consequences for rights protection that tend to ensue. Less successful is his outsized confidence in a comparative approach, especially as applied to political and juridical communities as distinct as the USA and Europe. While the imperfect comparisons yield useful insights, Fabbrini at times overstates their import.