Human Rights Law Commons^™

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As …

Considering Standing, Sincerity, And Antidiscrimination, Chapin C. Cody

Working Paper Series

This Article will establish that an unrecognized norm, the “norm of sincerity,” is an implicit factor in the standing analysis in a certain class of equal protection cases. That class of cases includes equal protection claims where 1) courts have applied the “able and ready to compete” test to determine a plaintiff’s injury in fact, and where 2) the plaintiff has complained about discriminatory access to limited government resources. In those cases, a plaintiff cannot demonstrate injury in fact sufficient to meet Article III standing unless she shows that she sincerely intends to use the benefits at stake in the …

Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, And The Denial Of Human Dignity, John F. Stinneford

UF Law Faculty Publications

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire …

Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen

ExpressO

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture.

The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

ExpressO

The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: “Societies that trade liberty for security end often with neither.” Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism – including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government’s actions in fighting terrorism. The thesis throughout …

Law, Narrative, And The Continuing Colonist Oppression Of Native Hawaiians, David Barnard

ExpressO

The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians’ struggles for redress and reparations for a century of dispossession and impoverishment at the hands of the United States. Second, it demonstrates in the concrete case of Hawaii the power of a particular historical narrative—when it is accepted uncritically by the Supreme Court—to render the law itself into an instrument of colonial domination. Third, it …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

The Supreme Constitutional Court Of Egypt On Islamic Law, Veiling And Civil Rights: An Annotated Translation Of Supreme Constitutional Court Of Egypt Case No. 8 Of Judicial Year 17 (May 18, 1996), Nathan J. Brown, Clark B. Lombardi

American University International Law Review

No abstract provided.

The History Of Slave Marriage In The United States, 39 J. Marshall L. Rev. 299 (2006), Darlene C. Goring

UIC Law Review

No abstract provided.

The French "Headscarves Ban": Intolerance Or Necessity?, 40 J. Marshall L. Rev. 235 (2006), Reuven (Ruvi) Ziegler

UIC Law Review

No abstract provided.

Do Constitutions Requiring Adherence To Shari'a Threaten Human Rights? How Egypt's Constitutional Court Reconciles Islamic Law With The Liberal Rule Of Law, Clark B. Lombardi, Nathan J. Brown

American University International Law Review

No abstract provided.

‘Blissed Out: Section 15 At Twenty’, Margot Young

All Faculty Publications

This paper was written for the 20th anniversary of the coming into force of section 15(1) of the Canadian Charter of Rights and Freedoms. Unfortunately the same themes that defeated Stella Bliss in 1979, when she launched her Canadian Bill of Rights challenge to the Canadian Unemployment Insurance Act continue. While equality law has moved on from the specific facts of Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183, and from some of the discrete judicial conclusions in that case, it is still true that the series of critical ways of understanding the relationship between equality rights, individuals and …

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

All Faculty Scholarship

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

The Dual Model Of Balancing: A Model For The Proper Scope Of Balancing In Constitutional Law, Iddo Porat

Cardozo Law Review

No abstract provided.

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

Medellin, Norm Portals, And The Horizontal Integration Of International Human Rights, Margaret E. Mcguinness

Faculty Publications

(Excerpt)

The dominant narrative of the Medellín v. Dretke line of cases challenging widespread noncompliance by the United States with the notification provisions of Article 36 of the Vienna Convention on Consular Relations (VCCR) tells a story of vertical treaty enforcement. The United States has agreed to be bound by a treaty that requires law enforcement authorities to inform foreign nationals arrested in this country of their right to notify their consulates and also requires authorities to permit the foreign consulate to assist its nationals. The United States has further agreed that the International Court of Justice (ICJ) has jurisdiction …

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster

ExpressO

This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.

The article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.

The article then examines …

Book Review, Ángel R. Oquendo

Journal of Legal Education

No abstract provided.

Broken Borders: Decanas V. Bica, And The Standards That Govern The Validity Of State Measures Designed To Deter Undocumented Immigration, Joshua J. Herndon

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

International Responsibility For Human Rights Violations By American Indian Tribes, Klint A. Cowan

ExpressO

The American Indian tribes have a unique status in the law of the United States. They are characterized as ‘sovereigns’ that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. They enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and US international human rights obligations. This essay explores this connection. It examines whether the tribes may …

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Comparing Human Rights In Two Ethiopian Constitutions: The Emperor's And The "Republic's"-Cucullus Non Facit Monachum, Minasse Haile

Cardozo Journal of International and Comparative Law

The article compares Ethiopia's Constitutions from 1931, 1955, and 1995, arguing that the earlier constitutions under Emperor Haile Selassie provided a stronger foundation for human rights and democracy compared to the 1995 Constitution under the TPLF. It suggests that traditional autocracies may evolve into democracies, whereas modern elected autocracies often perpetuate power. The TPLF's Constitution, despite its progressive rhetoric, fails to ensure free elections, enforce human rights, and uphold international law, leading to a totalitarian state with unchecked executive power.