Law Commons^™

The Emerging Crime Of Persecution Based On Sexual Orientation, Anthony J. Colangelo

Northwestern Journal of Human Rights

This Article argues that persecution based on sexual

orientation constitutes a crime against humanity under international law.

Unlike other scholarship that has focused on the definition of crimes against

humanity in the 1998 Rome Statute for the International Criminal Court—

which does not explicitly enumerate “sexual orientation” as a protected

classification—this Article looks to customary international law made up by

the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107

states enacted laws or revised existing laws decriminalizing sexual

orientation and/or categorizing sexual orientation as a protected

classification from discrimination. This is in addition …

Neo-Brandeisianism's Democracy Paradox, Thomas A. Lambert, Tate Cooper

Faculty Publications

Neo-Brandeisians, including the current heads of the U.S. antitrust enforcement agencies, have declared contemporary antitrust a failure. Among their chief complaints is that prevailing antitrust doctrine has failed to protect democratic values because it has allowed business enterprises to amass excessive economic power. Such economic power, they assert, breeds undue political power as large firms have the resources to sway policymakers and may thereby thwart majority will. Outside the political realm, NeoBrandeisians say, massive industrial concentration undermines effective self-governance by rendering citizens beholden as consumers, suppliers, and laborers to a small group of powerful firms. To preserve democratic values, defined …

Tyrannical Hoas And How To Reign In Their Foreclosure Power And Further Protect Homeowners, Juliette Koves

Faculty Scholarship

No abstract provided.

Sharma: The Erasure Of Both Group-Based Disadvantage And Individual Impact, Jonnette Watson Hamilton, Jennifer Koshan

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Sections 7 and 15 of the Canadian Charter of Rights and Freedoms both play a critical role in protecting members of disadvantaged groups from the harms of state action. In R. v. Sharma, released in November 2022, a 5-4 majority of the Supreme Court of Canada dismissed arguments under both sections in a claim that raised the impact on Indigenous offenders of a 2012 law that restricted the availability of conditional sentences. Our focus in this paper is on the doctrinal implications of the majority and dissenting opinions in Sharma for future section 15 and section 7 claims. We discuss …

Masthead & Table Of Contents, Uchechukwu Ngwaba

The Transnational Human Rights Review

No abstract provided.

From Framework To The Field: How ‘Data Power’ In Agri-Food Systems Violates Human Rights, Jane Ezirigwe

The Transnational Human Rights Review

This article builds on the analytical framework I co-developed in “Power Contestations in the Use of Agri-food Data: Towards a Sustainability Governance Approach” by expanding its application and demonstrating its relevance to human rights concerns. Drawing on sectoral examples, the article examines five interrelated dimensions of power—agenda-setting, technology development and deployment, politics of knowledge and evidence, hegemonic alliances, and harvesting data and value—and shows how these dynamics produce structural inequities and violations of rights to food, participation, non-discrimination, privacy, and cultural integrity. While the human rights system has limitations, as most treaties predate the emergence of big data and lack …

Book Review - Oreva Olakpe, South-South Migrations And The Law From Below: Case Studies On China And Nigeria, Uchechukwu Ngwaba

The Transnational Human Rights Review

I begin my review of Oreva Olakpe’s book, South-South Migrations and the Law from Below: Case Studies on China and Nigeria, by observing that occasionally, a story comes along that needs to be written. One such story is Chinua Achebe’s Things Fall Apart. Achebe was a conduit by which the powerful account in Things Fall Apart was written. The story was one that had to be written at some point because it filled a gap in the bookshelf. During an interview, Achebe stated that he felt something needed to be done. At the time, European authors wrote most of the …

Local Government Regulation Of Ccs, Keith B. Hall

Wyoming Law Review

Carbon capture and storage is being used in an increasing number of locations in the United States as a tool to address climate change, and many more projects are in the planning stages. Although government, industry, and some prominent environmental organizations support the use of CCS, some environmental organizations and many citizens who live in the vicinity of proposed CCS projects oppose CCS. This has prompted several local governments to enact ordinances that attempt to prohibit or regulate CCS. These ordinances take many forms—moratoria, zoning restrictions and setbacks, effective bans, outright bans, construction and operational restrictions, and various other types …

Table Of Contents

Missouri Law Review

No abstract provided.

No Child Left Confined: Challenging The Digital Convict Lease, Chaz P. Arnett

Journal of Health Care Law and Policy

The following is a lightly edited transcript of comments provided at the Journal of Health Care Law & Policy’s Spring Symposium entitled “Uneasy Alignments: The Mental Health Turn in The American Legal System.” This event was hosted on March 16, 2023, by University of Maryland Francis King Carey School of Law in collaboration with the University of Maryland School of Social Work’s Daniel Thursz Social Justice Lecture Series. The Symposium examined how legal systems, like child welfare and juvenile law institutions, use coercion to force engagement or compliance with often unproven therapeutic interventions. The presentation took on the question of …

Slavery Still Exists And May Have Produced Your Hairdryer, Katherine Pratty

American University International Law Review

In 2020, the International Labour Organization (“ILO”) estimated that forced labor generated $51 billion USD. Many profiteers are not individual bad actors, but rather, corporations. Recently it came to light that one corporate profiteer is the multinational technology manufacturing company, creator of the most awarded hair care device in 2021: Dyson Limited. While Dyson has received praise for its products, Malaysia charged Dyson’s main production factory, ATA IMS, with labor law violations. Shortly thereafter, in February 2022, UK law firm Leigh Day publicly announced its suit against Dyson on behalf of the workers in Dyson’s Malaysia factory.

This Comment analyzes …

Boiling Behind Bars: Exploring The Hidden Toll Of Extreme Heat On Mental Health In Texas Prisons, Sandra K. Miller

Social Work Theses - Archive

The State of Texas supports the largest prison system in the US and held 132,859 people in 100 units scattered across the state as of December 2023. Approximately 70% of Texas prison beds are not air conditioned, despite the state’s reputation for dangerously hot, humid summers. The State has officially recorded temperatures inside Texas prison facilities as high as 120 degrees with heat index values of over 150. Although there is a growing body of research on the negative physiological and psychological consequences of extreme heat among the general public, little is known about the physical and emotional toll of …

Powerless Beings: Solitary Confinement Of Humans And Nonhumans In America, Michael B. Mushlin, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Every day, thousands of humans and millions of nonhumans endure solitary confinement. Human prisoners held this way are confined for twenty-two to twenty-four hours a day for weeks, months, or even years on end in cells the size of a parking space. For these humans, the experience is tortuous. Captive animals held in solitary confinement similarly spend much of their lives locked into tiny spaces, isolated, and deprived of the types of interactions and environment essential to their wellbeing. And, like humans, they are driven mad. In human and nonhuman settings, the agony of solitary is chillingly alike and harmful. …

The Federal Future Of Medication Abortion, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

A majority of Americans believe that there should be a right to abortion, at least in some cases. Yet a vocal and determined minority has its sights set on a complete ban on all abortions everywhere in the United States. In many states, these anti-abortion activists have achieved their goal through new laws and limitations enacted in the wake of the Supreme Court's 2022 decision in Dobbs. Anti-abortion advocates are also challenging the Food and Drug Administration's regulatory approval of mifepristone, one of the drugs used in medication abortion (also known as medical abortion). The FDA had initially approved mifepristone …

Governing Private Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

After the Supreme Court's opinion in Dobbs rejected an individual right to reproductive choice, many private firms chose to govern reproductive healthcare by covering employee access to abortions. As mass shootings continue to plague the country, some firms have decided to govern firearm safety by discontinuing sales of assault weapons. While the climate crisis continues to upend life on Earth, corporate leaders are engaging in private environmental governance by voluntarily reducing their own emissions, demanding reductions within their supply chains, and pressuring peers and competitors to do the same. Each of these endeavors represents a form of private governance in …

Multinational Asset Management Firms & Esg Disclosure Management, Maggie Pahl, Michael Hamersky, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

In recent years, the United States, European Union, and United Kingdom have introduced “Environmental, Social, and Governance” disclosure regulations. Multinational Asset Management Firms must now navigate the evolving and varied disclosure and labeling requirements they are subjected to across multiple jurisdictions. This Article provides a brief history of ESG disclosure regulation and provides a summary of the enacted and proposed regulations and identifies the biggest points of contention between the regulations and provides suggestions for a more comprehensive standardized regulatory framework.

Displacing Climate Precarity, Camila Bustos, Julia Neusner

Elisabeth Haub School of Law Faculty Publications

In this Essay, we explore these questions and present a two-part argument. In Parts II and III, we argue that because climate change is exacerbating other drivers of displacement, it is seldom possible to attribute movement to any single factor or to categorize movement conclusively as voluntary or involuntary. Therefore, expanding pathways to safety for all people on the move is the best approach to protect those displaced, directly or indirectly, by climate change and environmental disasters. In Part IV, we argue that, despite attribution and definitional challenges with regard to climate-related mobility, documenting and assessing the role of climate …

Closing Remarks: Toward A Climate Migration Solution, Austin T. Fragomen, Jr., Nancy H. Morowitz

Case Western Reserve Journal of International Law

No abstract provided.

A Restatement Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Debates about democracy are everywhere. Extremists, whether on the streets of Washington or Brasilia, perpetrate violence under the banner of democracy. But what do we mean when we talk about democracy? The debates, in the streets, popular media, or pages of academic journals, leave one wanting for depth and precision. This Article thus aims to provide an analytically useful model of Western democracy by surveying the vast and complex literature and distilling from that literature a series of core elements. From this exercise, this Article identifies the following four elements of democracy: majoritarianism, individual contestation, reason-giving, and deliberation. Although the …

Disclosure, Greenwashing, And The Future Of Esg Litigation, Jason J. Czarnezki, Barbara Ballan

Elisabeth Haub School of Law Faculty Publications

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how …

Disgusted Judges And Domestic Violence, Jessica Miles

Elisabeth Haub School of Law Faculty Publications

Domestic violence is disgusting. Seeing a person with a bruised face or black eye can make us cringe. Reading a graphic description of a physical or sexual assault by an intimate partner can lead to revulsion. Like the rest of us, judges experience disgust--both consciously and subconsciously--when confronted with evidence of abuse in intimate relationships. These feelings of disgust shape the judicial system's responses to domestic violence in non-obvious ways.

In the minority of cases which seem to be “clear cut” (e.g., involving recent and corroborated physical or sexual violence), judicial disgust with defendants found to have perpetrated domestic violence …

An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua

City University of New York Law Review

The Dobbs decision has been leaked. Gathered outside of New York City’s St. Patrick’s Old Cathedral, pro-choice protesters chant: “Not the church, not the state, the people must decide their fate.” A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: “I am the people, I am the people, I am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you’re having my baby.”

Despicable but not unexpected, this man’s comments …

Character And Fitness In America's Neo-Redemptive Era, Tolu Lawal, Al Brooks

City University of New York Law Review

The Character and Fitness process is the last major institutional hurdle that aspiring attorneys must overcome to gain licensure to the legal profession. A process held out to determine “moral” character, the Character and Fitness often goes uninterrogated, instead flattened into just a quotidian and inconvenient aspect of the profession’s admission procedures. However, the normalization of both the process and existence of the Character and Fitness obscures the reality that this unscientific process neither has particularized, inherent value to the profession nor is an accurate tool of determining the moral or ethical principles of potential attorneys. Instead, the advocacy of …

Between A River And A Wall: An Impossible Choice For Migrants Living Under Operation Lone Star And S.B. 4, Salimah Khoja, Paulina Leyva Hernandez

City University of New York Law Review

In 2023 the Texas legislature passed Senate Bill 4 (“S.B. 4”), which empowers state and local law enforcement agencies to engage in immigration enforcement by arresting and deporting migrants who are suspected of crossing the southern border. Anti-immigrant state laws like Texas’s S.B. 4 and Arizona’s Senate Bill 1070 (“S.B. 1070”) were created to test the limits of state power and limit the reach of federal immigration enforcement within the states. Legal challenges to state laws like S.B. 4 and S.B. 1070 demonstrate the ongoing tension between federal and state governments related to authority over immigration matters, even though immigration …

Causing Or Risking Climate Catastrophe, Donald Braman, Aaron Regunberg, David Arkush

GW Law Faculty Publications & Other Works

This Essay explores the potential criminal liability of major fossil fuel companies (FFCs) under state laws prohibiting reckless conduct that causes or risks catastrophe. Using Pennsylvania's criminal code § 3302 as a case study, we argue that FFCs' decades-long pattern of deceptive conduct regarding climate change—continuing to aggressively market and sell fossil fuels while actively concealing and denying the catastrophic risks their own scientists had identified—constitutes criminal behavior under these statutes. We demonstrate how FFCs' actions satisfy the key elements of these crimes: they created risks of catastrophe through their emissions and disinformation campaigns, acted recklessly in doing so given …

Indigenous Knowledge As Federal Policy, Sara C. Bronin

GW Law Faculty Publications & Other Works

In 2024, the federal historic preservation agency unanimously voted to adopt a policy supporting the full recognition and integration of Indigenous Knowledge in the preservation field. Indigenous Knowledge can be described roughly as the body of observations, knowledge, practices, and beliefs developed by Indigenous Peoples through their interaction and experience with the environment. The policy acknowledges that Indigenous Knowledge is valid, sound, and self-supporting, and that designated representatives of Indian Tribes, Alaska Native villages, and Native Hawaiian organizations should be recognized as subject-matter experts with regard to properties of religious and cultural significance to them. Indigenous Knowledge has not been …

The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu

GW Law Faculty Publications & Other Works

This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious exercise and knowledge acquisition, as …

Food Procurement: An Essential Ingredient To Mitigating Climate Change And Enhancing Public Health, Chloë Waterman, Rachel Clark, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short article addresses a critical, but often underappreciated, aspect of the evolving suite of efforts to reduce greenhouse gas (GHG) emissions: food and agriculture systems, which account for at least a quarter of GHG emissions and more methane emissions than any other sector. The article invites government leadership to become more intentional in focusing on sustainable food procurement as a key strategy to mitigate climate change. The authors argue that public food procurement can – and should – be leveraged to generate a wide range of cascading social benefits beyond mitigating climate change and improving public health, including worker …

Durability, Flexibility And Plasticity In The U.N. Convention On The Law Of The Sea, Sean Murphy

GW Law Faculty Publications & Other Works

The overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks …

Firearms And The Homeowner: Defending The Castle, The Curtilage, And Beyond, Cynthia Lee

GW Law Faculty Publications & Other Works

In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two …