Law Commons^™

Connecting The Dots: Immigration Policy And Access To Higher Education For Refugees In France, Isabella Amaro Varas

CISLA Senior Integrative Projects

Since 2016, the increasing number of refugees in Europe accelerated the development of national and regional policies to determine their rights and access to resources. Against this backdrop, the strong politicization of migration, and the recent financial crises, refugees' access to welfare has “become a key area of concern across European democracies” (Lafleur et al. 2020). Considering public education programs as a pillar of social policy agendas in this region, this study examines French policy in order to answer the following questions: How do French immigration and education policies converge to determine refugees’ access to higher education in France? What …

Border Orientation In A Globalizing World, Beth A. Simmons, Michael R. Kenwick

All Faculty Scholarship

Border politics are a salient component of high international politics. States are increasingly building infrastructure to ‘secure’ their borders. We introduce the concept of border orientation to describe the extent to which the State is committed to the spatial display of capacities to control the terms of penetration of its national borders. Border orientation provides a lens through which to analyze resistance to globalization, growing populism, and the consequences of intensified border politics. We measure border orientation using novel, geo-spatial data on the built environment along the world’s borders and theorize that real and perceived pressures of globalization have resulted …

Vox And Spanish Nationalism: The Constitutional Processes For The Elimination Of Regional Autonomy, Noah Halterman-Mitchell

Independent Study Project (ISP) Collection

After the death of Francisco Franco and the creation of the modern Spanish State, hard-core right-wing Spanish nationalism disappeared from the political spectrum. Spain and Portugal avoided the lure of far right-wing political tendencies to which the rest of Europe fell victim. Until recently, VOX, a far right-wing party, gained seats in Parliaments at the Autonomous Community level and in the Spanish National Parliament.

VOX believes in a mono-national state, a Spanish State, rather than a state composed of different nationalities such as Basque, Catalan, or Galician. In order to achieve their desired vision of the Spanish State, VOX advocates …

Is There A Future For Arrivecan At The Land Border?, Andrzej Jakubowski, Laurie D. Trautman

Border Policy Research Institute Publications

The outbreak of the COVID-19 pandemic led to the introduction of a number of restrictions as governments around the world sought to implement border management tools that could protect public health. One such example was the ArriveCAN app, introduced by the Government of Canada in November 2020. This advanced data submission tool aimed to reduce the spread of COVID-19 by ensuring arrivals were vaccinated and by facilitating contact tracing. This Border Policy Brief provides a summary of the nearly two-year use of ArriveCAN as a border management tool during the pandemic. We consider its impact on passenger flows through the …

Abandonados Por Los Estados Unidos: Migrantes Venezolanos Llenan Los Vacíos En La Comunicación De La Política Migratoria, Ingrid Piña

Independent Study Project (ISP) Collection

El 12 de octubre de 2022, los Estados Unidos (los EE. UU.) cambió la política migratoria respecto a los inmigrantes venezolanos, sin previo aviso. “El nuevo proceso de control migratorio” extendió a los venezolanos la orden de salud pública debido al COVID-19, “Título 42,” que expulsa migrantes por cruzar la frontera y niega el derecho humano de solicitar asilo, y el programa humanitario“Uniting for Ukraine” por cuál han entrado refugiados de Ucrania desde abril de 2022. Efectivo inmediatamente, la nueva política puso en riesgo a los migrantes venezolanos ya en camino a los EE. UU. Entre los migrantes recientemente expulsados …

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

The Weaponization Of Rape: Military Culture, Tactical Warfare, And Legal Justice, Claire Velte

International Relations Summer Fellows

The long-accepted narrative of wartime rape is one of inevitability, with sexual violence committed at the hands of soldiers during conflict being written off as an unavoidable side-effect of war. In reality, however, wartime rape can be systematically and tactically employed by military forces to terrorize the bodies of their enemies, often as an attempt to physically and psychologically destroy certain populations. The act itself, when employed tactically, is legally recognized as a weapon of war—and the rape of civilians by military forces was legally designated as a crime against humanity in 1993—yet rape continues to be utilized in conflict …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

The Politics Of The Self: Psychedelic Assemblages, Psilocybin, And Subjectivity In The Anthropocene, Joshua Falcon

FIU Electronic Theses and Dissertations

This dissertation examines how psychedelic substances become drawn into particular sociohistorical and political arrangements, and how psychedelic experiences with psilocybin ‘magic mushrooms’ are used as tools of subjectivation. Guided by literatures in philosophy, critical theory, and the social sciences that focus on subjectivity, assemblage theory, and critical posthumanism, I argue that psychedelics are drawn into variegated assemblages, each of which conceptualizes the nature of psychedelics in highly specific ways that reflect implicit conceptions of the world and the self. In developing the concept of psychedelic assemblages, this research provides a window onto the politics of the self in the Anthropocene. …

The Normalization Of The Exception: The Nexus Of Emergency Powers And Criminal Justice In Colonial And Postcolonial Jamaica, Jermaine Ar Young

FIU Electronic Theses and Dissertations

Since the antiquity, the study of emergency powers has tended to revolve around the dichotomy between norm and exception, suggesting that governments follow established rules of law in ordinary circumstances and resort to extraordinary measures only in times of genuine emergency. My dissertation challenges this dichotomy by analyzing Jamaica’s colonial and post-colonial experiences with emergency powers in order to provide a different story about the norm-exception binary. In fact, Jamaica’s case shows there are no neat partitions between both spheres. Instead, what we see unfolding is the technical application of emergency provisions as legality, rule by law, rooted in continual …

Forgotten Immigrant Voices: West Indian Immigrant Experiences And Attitudes Towards Contemporary Immigration, Danielle Cross

Honors Scholar Theses

Scholarly work and media coverage both point to the negative effect that the rhetoric and policy of former US President Donald Trump had on the lived experience and wellbeing of immigrant groups explicitly targeted by it (i.e., the “Trump effect”). Typically, the focus has been on Muslim and Latino immigrants as well as those less-explicitly targeted but still affected by Trump-era policies, such as temporary workers. This thesis explores whether Black immigrants from the English-speaking Caribbean, a group notably missing from the literature of “Trump effects” on immigrant experiences, experienced similar attitudinal or practical effects as a result of contemporary …

The Role Of Non-Governmental Organizations (Ngos) In Improving Human Rights In Iraq, Naser A. Yahya

Department of Political Science: Dissertations, Theses, and Student Research

Iraq has had a long history of human rights violations since its inception as a modern state in 1921. This is true especially under the personalistic dictatorship of Saddam Hussein. Under his regime, the Iraqi people suffered a consistent pattern of gross violations of internationally recognized human rights, including political imprisonment, torture, and summary and arbitrary executions. This regime used a variety of mechanisms to squelch political dissent, including house-to-house searches; arbitrary arrests, often in large numbers; surveillance; harassment and questioning of family members; detention of targeted individuals, such as those returning to Iraq pursuant to amnesties, at unknown locations; …

As Seen On Screen: American Ambivalence Shown Through Death Penalty And Vigilante Films, Lisette Donewald

Honors Scholar Theses

The United States is one of the last western nations still practicing capital punishment. A history of and commitment to vigilantism and its ideals offers an explanation of America’s retention of capital punishment. Employing scholarship on law and popular culture and vigilantism, this thesis finds that pro-death penalty frames are prevalent in vigilante films while anti-death penalty frames are prevalent in films that focus specifically upon capital punishment. Since the 1960’s however, there has been a gradual shift towards anti-death penalty frames and away from pro-death penalty frames as well as changes in the themes presented in the two genres …

Pursuit Of The Vote: Factors Utilized In Resisting Discrimination In Democratic Elections, Matthew Nicholson

Honors Scholars Collaborative Projects

Suffrage movements make use of various social and political factors to pressure their governments to expand the scope of voting rights. Using McAdam’s political process model, I will analyze how disenfranchised groups’ use of nonviolent demonstration, appeals to international pressure, and appeals to religion, affects their success. This will also highlight patterns that emerge when groups are willing to instigate violence in pursuit of their goals. Most studies examine these variables in the context of the pursuit of independence or revolution, whereas this study focuses on groups wishing to remain within a system given their desired reforms. I will analyze …

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek

Journal Articles

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. …

Examining Stock Trading Reforms For Congress Hearing Before The U.S. House Of Representatives Committee On House Administration, Donna M. Nagy

Public Testimony by Maurer Faculty

Professor Nagy testified (text attached, video below) in support of federal legislation that would prohibit members of Congress from owning the securities of individual publicly traded companies as well as certain other investments that would likely conflict with their official duties.

It was nearly 10 years ago to the day when President Barack Obama signed the Stop Trading on Congressional Knowledge (STOCK) Act, requiring enhanced financial disclosures and creating new securities transaction reporting rules for members of Congress, certain members of their family, and their staff. The Act also made absolutely clear that a member of Congress who trades securities …

Washington State Sausage Making: Attempting To Measure The Efficiency Of The Legislature, Jonathon Church

PPPA Paper Prize

This paper explores the validity and justification for using how a bill dies in the Washington State legislative process to better critique and measure government efficiency. The information was gathered through interviews with former and current members of the State Legislature and from first-hand experience while working as an intern during the 2022 legislative session. Part one of the paper utilizes multiple sources to present a detailed description of the various ways in which a bill can fail to make it through the legislative process during the regular session. Part two then expands on how these obstacles in a bill's …

Irregular Migration In Morocco: A Case For Constructionism, Mourad Khalil

Independent Study Project (ISP) Collection

Separated by only 14 kilometers of water from Spain, Morocco has become a common destination for many sub-Saharan irregular migrants trying to reach Europe. With a large population of these migrants, Morocco has had to make important decisions on how to manage its irregular migrant population. However, the terrible conditions and regular violations of human rights that irregular migrants in Morocco are subject to lead one to ponder the role that international relations has and the extent to which human rights is a consideration in the policymaking of irregular migration. Applied to the three primary theories of international relations, liberalism, …

The Dilemma Of Banned Books: Questioning The Ethics Of Censoring Literature In Schools, Kyle King

Augustana Center for the Study of Ethics Essay Contest

Literature, specifically in the form of novels, has been a vital organ of the public education system within the United States. Not only does reading such works transform us into better close readers and strengthen our vocabulary, but the texts at hand can be very essential to analyze specific contexts or issues that might have existed either throughout history or even in the present day. In today’s country, the issue of banning certain books from school curricula has become as prevalent as ever, where mostly Southern Republican officials are calling for lists of books to be restricted from teaching due …

The Influence Of The Thirty-Six Stratagems On Chinese Strategy In The Diaoyu Islands, Brent Schuliger

Senior Honors Theses

The Diaoyu Islands are a small, uninhabited archipelago in the East China Sea which has begun increasing in strategic significance due to its advantageous location near Taiwan and along the First Island Chain. The islands are currently under Japanese administration, but the People’s Republic of China considers them historically Chinese and contests Japan’s claim to the islands. A careful examination of China’s actions in challenging Japan’s rule over the Diaoyus reveals the influence of the Thirty-Six Stratagems, a tome of ancient Chinese military wisdom which provides a framework onto which China’s current strategy corresponds. This thesis examines the historical …

The Future Of Multinational Accountability Within The Environmental Policy Nexus, Lauren Beasley

Independent Study Project (ISP) Collection

The purpose of this paper is to examine current international environmental policy shortcomings regarding multinational accountability, explore future legally binding options, and offer a resolution towards effective accountability mechanisms. To do so, it uses a two-part methodology composed of a comprehensive engagement with existing secondary sources from the academic literature and four interviews with experts in the field. The paper builds out considerations in seven key areas for normative consideration regarding the future of legally binding environmental policy. These considerations are hard law considerations in: International Law, International Human rights law, International Humanitarian Law, and International Environmental Law and procedural …

Unofficial Torturers And Helpless Victims: Applying The Convention Against Torture To Organized Criminal Groups, Emmanuel Orozco Castellanos

Independent Study Project (ISP) Collection

Since its inception, the United Nations Convention Against Torture (UNCAT) conceived torture as a state crime. The Convention established a so-called “state-nexus” that effectively excludes torture committed by non-state actors. The Committee Against Torture as well as the world’s major anti-torture NGOs have almost exclusively focused on ill-treatment perpetrated by state entities. Yet, there have been efforts to extend the definition to private actors, including the “de facto authority” approach, and the due diligence doctrine. This article explores the effectiveness of these efforts to expand the scope of the UNCAT when applied to organized criminal organization such as gangs and …

The Political Dynamics Of Legislative Reform: Potential Drivers Of The Next Communications Statute, Christopher S. Yoo, Tiffany Keung

All Faculty Scholarship

Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics that led to the enactment of such legislation can yield important insights. An examination of the tradeoffs that led the major industry segments to support the Telecommunications Act of 1996 provides a useful illustration of the political bargain that it embodies. Application of a similar analysis to the current context identifies seven components that could form the basis for the next communications statute: universal service, pole attachments, privacy, intermediary immunity, net neutrality, spectrum policy, and antitrust reform. Determining how these …

Semi-Presidential Executive Branch Institutionalization And Personalization Under Cuba's 1940 Constitution, Daniel Pedreira

FIU Electronic Theses and Dissertations

The ratification of Cuba’s Constitution of 1940 ushered hopes for democratic stability, most notably through the implementation of a semi-presidential system. Innovative for its time, semi-presidentialism sought to reduce the “perils of presidentialism” that plagued the early decades of the Cuban Republic. Yet, over the next two decades, the Cuban Republic declined and fell as it devolved into authoritarianism and totalitarianism.

This study analyzes the extent to which Cuba’s executive branch was institutionalized or personalized under the 1940 Constitution. Taking a close look at the presidential administrations of Fulgencio Batista Zaldívar (1940-1944, 1952-1954, and 1954-1959), Ramón Grau San Martín (1944-1948), …

A Reader’S Guide To Legal Orientalism, Teemu Ruskola

All Faculty Scholarship

My book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press 2013) was published in translation in China in 2016. This essay analyzes the Chinese reception of this book. Originally addressed to a North American readership, Legal Orientalism examines critically the asymmetric relationship in which Euro-American law and Chinese law stand to one another, the former regarding itself as an embodiment of universal values while viewing the latter’s as culturally particular ones. The essay explores what happens when a “Western” work of self-criticism is transmitted to an “Eastern” audience. In this context, it analyzes the politics of …

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

All Faculty Scholarship

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

Spillover Effects Of Quota Or Parity Laws: The Case Of Ecuador Women Mayors, Marcos Fabricio Perez, Santiago Basabe-Serrano

Political Science Faculty Publications

Do quota or parity laws designed to improve the representation of women in plurinominal elections have a spillover effect to uninominal elections? We empirically test this theory by analyzing the effects of quota and parity legislations implemented in Ecuador for plurinominal elections on the proportion of women elected as mayors. Through an unpublished database, our results show that after the implementation of such legislation, the probability of a woman being elected as mayor almost doubles (ceteris paribus). We also find evidence that a possible causal chain for the documented spillover effects is the increasing importance of female role models, motivated …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …