Law Commons^™

Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy

David T. Hardy

Dred Scott v. John F. A. Sandford was one of the most critical cases in Supreme Court history, “an astonisher,” as Lincoln phrased it. In the “Opinion of the Court,” which was not actually the opinion of the Court (parts of it mustered only three votes), Chief Justice Taney stretched to insulate slavery in every way manageable. The ruling became instead an application of the “law of unintended consequences.” It led to the rise of Abraham Lincoln (who devoted much of his “House Undivided” speech to it), the destruction of Stephen Douglas’ presidential campaign (since it held his core position …

Section 2 As An “Adequate Substitute” For Section 5: Proposing An “Effects-Only” Test As An Amendment To Section 2 Of The Voting Rights Act Of 1965, Bernice M. Bird

Bernice M. Bird

As the U.S. Supreme Court shall finally determine whether Section 5 of the Voting Rights Act of 1965 is unconstitutional next year in Shelby County, Ala. v. Holder, most suppressed minority voters may be left with only Section 2 as a remedy for voting discrimination challenges. However, the federal courts have consistently interpreted Section 2's "results" or "intent" test contrary to the legislative intent of Section 2 in increasing the burden for plaintiffs to demonstrate discriminatory intent of racial bias in enacting election laws. Thus, Section 2 currently serves as an inadequate substitute for redressing voting discrimination should the Supreme …

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

The European Social Charter And Its Implementation In The Republic Of Azerbaijan, Zaka Mirzayev

Zaka Mirzayev Zaka

In the article the European Social Charter, the core of the European social model is studied from the perspective of its potential implementation challenges in the Republic of Azerbaijan. Azerbaijan's efforts for the due fulfillment of the Charter obligations are analyzed in light of its legislation and legal practice, as well as in the context of the government’s relevant national reports that have been submitted to the Council of Europe up to day. Further, theoretical and practical problems impeding the treaty’s full implementation in the country are identified. The article also deals with issues relating to the Charter’s international and …

The Law Of Indicators On Women’S Human Rights: Unmet Promises And Global Challenges, Marta Infantino

Marta Infantino

Global indicators on human rights (HRs) aim to measure HRs scores against HRs standards. In other words, they aim to measure legal phenomena against legal benchmarks.

Despite HRs indicators’ reliance on legal knowledge, lawyers have so far neither made substantial contributions to their production, nor studied in depth the legal implications of their uses. The current state-of-the-art in the world of HRs indicators is the result of an ongoing process led by bureaucrats, economists, statisticians, and activists with limited legal training. It is these actors who are developing a new body of professional knowledge, and a new technology of governance …

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

A Ripening Obligation: The Responsibility To Protect International Human Rights In States Of Recent Occupation, Benjamin K. Grimes

Benjamin K Grimes

The United Nations has described State unwillingness to address extra-territorial human rights abuses as a failure of “civic courage … at the highest level.” That view is consistent with a trend in international jurisprudence on the issue of State responsibility for respecting and protecting human rights. In line with these opinions, this article examines the arc of international understanding of human rights responsibilities to identify the proper path for U.S. military operations. It proposes specific practical solutions to guide the United States in recognizing not only its joint legal responsibility for protecting human rights in post-occupation situations (as in Afghanistan), …

Is It Nobody's Business But The Turks': Recognizing Genocide?, Stanley A. Goldman

stanley a goldman

The Ninth Circuit Federal Court of Appeals sitting en banc in the case of Movsesian v. Victoria Versicherung AG declared unconstitutional a California statute which had authorized the filing of state lawsuits over never paid insurance claims brought by the descendants of victims of the 1915-1921 Turkish massacres of Armenians. While the Ninth Circuit suggested that any State may possess the power to acknowledge the massacre of the Armenians as having been “genocide,” California had intruded into a politically charged area in a way that amounted to establishing a particular foreign policy for the state. In its decision, the Ninth …

Conflict In The Courts: The Federal Nursing Home Reform Amendment And Section 1983 Causes Of Action, Susan J. Kennedy Ms.

Susan J Kennedy Ms.

Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action Susan J. Kennedy The cases interpreting the Federal Nursing Home Reform Act of 1987 (FNRAH) exemplify judicial wrangling over the application of statutory language conferring federally protected rights and defining the consequences of violating those rights. In passing FNHRA, Congress endeavored to enact legislation requiring nursing homes to provide quality care by coupling participation in federal Medicare and Medicaid programs with adherence to certain standards. Courts interpreting FNHRA have arrived at conflicting interpretations of its provisions. While most U.S. courts have adopted limited interpretations …

Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips

Roger L Phillips

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

The Emergence Of Private Property Law In China And Its Impact On Human Rights, Mark D. Kielsgard, Lei Chen

Mark D. Kielsgard

ABSTRACT This article investigates the development of private property law in the PRC and its connection to the growth of human rights trends in China. It assesses the vitality of these trends, reviews the relevant historic legal and social background and demonstrates how the introduction of private property in China has fundamentally altered the fabric of its civil society. Drawing upon case studies and statutory analysis, and evaluating them from the perspective of both Chinese and Western scholarship, it analyzes trends driving greater democratic structures by reviewing the self-governance of condominium owners associations and the human rights practices they have …

The Contribution Of The Arab Spring To The Role Of Transitional Justice And Amnesty Laws: A Review Of Tunisia, Egypt And Libya, Clarinsa Vannessa Grives, Christi Latrese Thornton

Clarinsa V Grives

Given the uncertainty of the role of amnesty laws in international law and with the uprisings in the Middle East and North Africa, most commonly known as the “Arab Spring,” this paper assesses what these countries will contribute to transitional justice and the role of amnesty laws in the international forum. The two predominant questions that this paper addresses is whether transitional justice, as we know it, will be useful for the Arab Spring countries and whether their use of transitional justice will change the way its viewed in international law. In this assessment, emphasis will be on the role …

The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi Jiyoung Bang

Naomi J Bang

ABSTRACT: THE GLOBAL SUPPLY CONTRACT CHARADE

HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR

Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to …

The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi J. Bang

Naomi J Bang

HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR

Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to the sheer geographic distance between them. …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

"Losers"

We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained …

A Decade Of Progress: Promising Models For Children In The Turkish Juvenile Justice System, Brenda Mckinney, Lauren Salins

Brenda A McKinney

In the past decade, Turkey has improved its approach to dealing with children in conflict with the law and moved the country closer to a system that ensures all children have the chance they deserve to strive for a better future. This paper focuses on two promising reforms that have been instituted in Turkey and that have the potential for improving juvenile justice systems in the rest of the world. They are: 1) open model incarceration and 2) diversion. While this paper also addresses challenges inherent in these models and discusses broader issues in the Turkish juvenile justice system that …

Applying Method To The Madness: The Right To Court Appointed Guardians Ad Litem And Counsel For The Mentally Ill In Immigration Proceedings, Amelia Wilson

Amelia Wilson

A unique dilemma facing immigration judges (IJs) and practitioners today is how to address the acute problem of mentally ill respondents appearing pro se in immigration removal proceedings. Mentally ill respondents are more likely to face deportation from a position of indigence and detention, both of which create substantial barriers to obtaining counsel. Even where represented, the mentally ill are less able to contribute to their own defense or understand the proceedings against them. This lack of meaningful participation has cascading deleterious effects on respondents themselves, but also on our already overburdened immigration courts by creating docket delays, prolonged detention, …

A Shot In Arm: Can Chemical Castration Statutes Cure Sex Offenders Legally And Ethically?, Robert Watters

Robert Watters

At least seven states currently have sex offender castration statutes. This article examines the legal and ethical appropriateness of those statutes against the successful and unsuccessful European models.

Adding Insult To Indian Injury, Ryan Dreveskracht

Ryan Dreveskracht

No abstract provided.

Restorative Justice In The Gilded Age: Shared Principles Underlying Two Movements In Criminal Justice, Ali M. Abid

Ali M Abid

Two very different approaches to Criminal Justice have developed in recent years suggesting systemic reforms that would reduce rates of crime and incarceration and lessen the disproportionate effect on minority groups and other suspect classes. The first of these is the Restorative Justice movement, which has programs operating in most US states and many countries around the world. The Restorative Justice movement focuses on reintegrating offenders with the community and having them repair the damage directly to their victims. The movement describes itself as based on the systems of indigenous and pre-modern societies and as wholly distinct from the conventional …

Hate Speech And Persecution: A Contextual Approach, Gregory S. Gordon

Gregory S. Gordon

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY) on the issue of whether hate speech can serve as an actus reus for CAH-persecution. In the 2000 Ruggiu and 2003 Nahimana judgments, separate ICTR Trial Chambers found that hate speech radio broadcasts not calling for violence deprived the target ethnic group of fundamental rights and …

Revictimizing Native Women For Politica Purposes, Ryan Dreveskracht

Ryan Dreveskracht

No abstract provided.

Does Justice Always Require Prosecution? The International Criminal Court And Transitional Justice Measures, Elizabeth B. Ludwin King

Elizabeth B Ludwin King

Two provisions of the Rome Statute of the International Criminal Court (ICC), those regarding complementarity and discretion to decline “in the interests of justice,” give the ICC Prosecutor the ability to yield to a state that wants to undertake its own transitional justice program. Given the global preference for the imposition of individual criminal liability for serious international crimes, as evidenced by the creation of the ICC, it is highly likely that most such programs will involve prosecution. This Article asks whether the ICC Prosecutor might step aside when faced with a state that favors other mechanisms of accountability and …

Efficacy And United States Trafficking Victims Protection Act: The Need For Treble Damages In The Private Right Of Action, Marc S. Wiesner

Marc S. Wiesner

No abstract provided.

Time For A Tune-Up: Retooling The 2012 Tip Report In Order To Better Meet International Legal Research Standards, Ashley Feasley

Ashley Feasley

The US Trafficking in Persons (TIP) Report is a valuable international report and diplomatic tool. However, the TIP Report needs to be overhauled to include documentation of sources and citations, as well as reflect relevant international legal standards. This paper points out some high-level improvements that could be made to the TIP Report to make it a better international research tool.

Disparate Protections For American Human Trafficking Victims, Amanda J. Peters

Amanda J Peters

The United States enacted the Trafficking Victims Protection Act (TVPA) in 2000. It was the first piece of legislation to address human trafficking. Since that time, the United States has monitored anti-trafficking efforts worldwide. Nations that fail to meet minimum standards set by the United States risk losing non-humanitarian financial aid from the federal government, the International Monetary Fund, and global banks. Yet, these minimum standards are not met by the United States when it comes to protecting American trafficking victims.

According to the TVPA, governments shall attempt to prevent human trafficking, punish traffickers, and protect people who have been …

The Human Rights Consent Principle, Vijay Padmanabhan

Vijay M Padmanabhan

One of the most pressing issues facing international human rights law today is when and how to respect the decision of States to consent or decline to international human rights norms. Should human rights treaty monitoring bodies, created to monitor State compliance with treaties, read their respective treaties to create obligations the parties did not contemplate? Is there a core of human rights norms that bind all States irrespective of State dissent? While the answer to these questions has traditionally been no, for the most part, in recent years practice and scholarship have shifted toward yes. The prerogatives of State …

Christianity In China: Maintaining Social Order Trumps Religious Freedom, Tina M. Trunzo-Lute

Tina M Trunzo-Lute

China is a powerful country with a population of 1.3 billion and the world’s second largest economy. While China excels in many areas, it lacks in providing religious freedom to its citizens. China has a few safeguards in place for religious believers, including the ratification of the ICESCR and provisions in its constitution. However, the inconsistent application of the safeguards and the government’s ultimate goals of furthering socialism and maintaining social order inhibit Christians in China from having the ability to freely and openly practice their religion without fear of persecution. This fear has thrust millions of Christians into illegal …