Law Commons^™

The Human Rights Of Non-Citizens. By David Weissbrodt. (Book Review), Caroline Bettinger-López, Bassina Farbenblum

Articles

No abstract provided.

Regulating Segregation: The Contribution Of The Aba Criminal Justice Standards On The Treatment Of Prisoners, Margo Schlanger

Articles

Over recent decades, solitary confinement for prisoners has increased in prevalence and in salience. Whether given the label "disciplinary segregation," "administrative segregation," "special housing," "seg," "the hole," "supermax," or any of a dozen or more names, the conditions of solitary confinement share basic features: twenty-three hours per day or more spent alone in a cell, with little to do and no one to talk to, and one hour per day or less in a different, but no less isolated, setting-an exercise cage or a space with a shower. Long-term segregation units operated along these lines are extraordinarily expensive to build …

State Bystander Responsibility, Monica Hakimi

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International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework …

Leveraging Asylum, James C. Hathaway

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I believe that the analysis underlying the leveraged right to asylum is conceptually flawed. As I will show, there is no duty of non-refoulement that binds all states as a matter of customary international law and it is not the case that all persons entitled to claim protection against refoulement of some kind are ipso facto entitled to refugee rights. These claims are unsound precisely because the critical bedrock of a real international legal obligation-namely, the consent of states evinced by either formal commitments or legally relevant actions -does not yet exist.

Dynamic Federalism In Human Rights Treaty Implementation, Johanna Kalb

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In response to the growing academic and political movement that opposes the direct incorporation of treaties into domestic federal law, numerous scholars have proposed that states take on an increased role in the domestic interpretation and implementation of international human rights treaties. The focus of this scholarship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in areas of traditionally federal jurisdiction. Thus far, however, little effort has been directed towards modeling an affirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required, both pragmatically …

Litigating Dignity: A Human Rights Framework, Johanna Kalb

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No abstract provided.

Taxing Civil Rights Gains, Anthony C. Infanti

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In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian families.

Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable or …

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

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In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

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The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

Customary Practice And Community Governance In Implementing The Human Right To Water--The Case Of The Acequia Communities Of Colorado's Rio Culebra Watershed, Gregory A. Hicks, Devon G. Peña

Articles

This paper offers commentary on the appropriateness of viewing, as a human right, the authority to manage water and to participate meaningfully in watershed governance, and it takes as an example the community of Hispano farmers of the Rio Culebra watershed of Southern Colorado in the headwaters of the Upper Rio Grande. In earlier work, the authors have written about the uneasy relationship between the formal system of appropriative water rights under Colorado law and the enduring set of local water norms practiced within acequias—the traditional water governance institutions and irrigation systems of the Culebra's Hispano farmers. The present …