Human Rights Law Commons^™

An Analysis Of South Africa’S Mental Health Legislation, Natalie Latoya Mccrea

Legal Writing Competition Winners

If one were to measure a society’s health by its historical environment, then something can indeed be said of South Africa. This nation is known for its long abhorrent history with apartheid entrenched with a political and human rights struggle. In 1995, the world witnessed the evisceration of apartheid and the birth of a new democratic South Africa. In light of the struggle endured by a visible portion of the South African population, a question asked is, what about the forgotten and somewhat invisible individuals, those who suffer with mental illness. The purpose ­of this work is to discuss South …

The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley

Faculty Scholarship

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address …

Citizenship Privilege Or The Right To Religious Freedom: The Blackmailing Of France's Islamic Women, Yael Barbibay

Cardozo Journal of International and Comparative Law

The note examines the tension between France's commitment to laïcité and the rights of Islamic immigrants, particularly women, to religious freedom and cultural identity. It critiques the denial of citizenship to Faiza Mabchour, arguing that such decisions reflect a broader effort to suppress Islamic practices and undermine pluralism. The analysis contends that France's rigid application of laïcité violates international human rights norms, particularly the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The article advocates for a more inclusive approach to citizenship that balances secularism with religious freedom and cultural diversity.

Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young

All Faculty Publications

This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …

The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward

Journal Articles

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual …

The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young

All Faculty Publications

This case comment discusses the judicial decisions in Sagen v. VANOC regarding the constitutional challenge brought by women ski jumpers to their exclusion from the 2010 Vancouver Winter Olympics. While the claimants argued that the constitutional equality provision (section 15 of the Canadian Charter of Rights and Freedoms) had been infringed, the BC courts' decisions focussed on the novelty of the state action problem. At least one level of court accepted that the exclusion was discriminatory but the challenge failed because the decision to exclude lay within the power of the International Olympic Committee, an entity beyond the ambit of …

Making Social Rights Conditional: Lessons From India, Madhav Khosla

Faculty Scholarship

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This …

One New President, One New Patriarch, And A Generous Disregard For The Constitution:, Robert C. Blitt

Vanderbilt Journal of Transnational Law

The government of Russia and the Russian Orthodox Church (ROC)--the country's predominant religious group--recently underwent back-to-back changes in each institution's respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church-state relations in the Russian Federation. Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation's constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

State Action And Corporate Human Rights Liability, Curtis A. Bradley

Faculty Scholarship

This essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute. It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. § 1983. It also argues that, even if it were appropriate to borrow in this manner from the Section 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds.

Persone Incapaci E Decisioni Di Fine Vita (Con Uno Sguardo Oltreoceano), O. Carter Snead, Andrea Simoncini

Journal Articles

Title in English: Incapacitated Persons and End of Life Decision Making (with an Across-the-Ocean View) No translation available.

De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke

San Diego International Law Journal

The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.

States Of Resistance: The Real Id Act And The Limits Of Federal Deputization Of State Agencies In The Regulation Of Non-Citizens, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

The goal of this Article is to discuss the justiciability of issues arising under immigration federalism by examining the constitutionality of the REAL ID Act. Part I discusses states' authority over non-citizens and the history of "immigration federalism" jurisprudence. Part II explores key provisions of the REAL ID Act, the WHTI, and similar attempts by the federal government to deputize states to engage in citizenship-policing and immigration enforcement. It describes the acute social and economic segregation that the denial of driver's licenses to non-citizens engenders, and examines a number of theories that attempt to capture the impact of the current …

Protecting Freedom Of Expression: The Challenge Of Hate Speech In The European Court Of Human Rights Case Law, Mario Oetheimer

Cardozo Journal of International and Comparative Law

The article examines the European Court of Human Rights' (ECHR) approach to balancing freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) with the need to combat hate speech. The Court systematically excludes certain forms of hate speech from protection, particularly racist and Holocaust denial speech, under Article 17, while affording strong protection to expression that contributes to public debate. The analysis highlights the Court's case-by-case approach, reliance on context, and the distinction between hate speech and incitement to violence.

Are Secularism And Neutrality Attractive To Religious Minorities? Islamic Discussions Of Western Secularism In The "Jurisprudence Of Muslim Minorities" (Fiqh Al-Aqalliyyat) Discourse, Andrew F. March

Cardozo Law Review

No abstract provided.

Why The French Laïcité Is Liberal, Patrick Weil

Cardozo Law Review

No abstract provided.

Freedom And Faith - Foundations Of Freedom Of Religion, Matthias Mahlmann

Cardozo Law Review

No abstract provided.

The European Convention On Human Rights And Church-State Relations: Pluralism Vs. Pluralism, Françoise Tulkens

Cardozo Law Review

No abstract provided.

Islamic Headscarves And Slippery Slopes, Murat Borovali

Cardozo Law Review

No abstract provided.

Secular Constitutionalism Vindicated, Frances Raday

Cardozo Law Review

No abstract provided.

Religious Revival And Pseudo-Secularism, Guy Haarscher

Cardozo Law Review

No abstract provided.

The Lexington Principles On The Rights Of Detainees: A Transnational Legal Process Approach To Due Process, David Alan Jordan, Frederic L. Kirgis, R. Brooke Lewis, Thomas Greenwood, Bennett L. Ross, Kathryn M. Zunich

Scholarly Articles

In Boumediene v. Bush, decided June 12, 2008, the U.S. Supreme Court extended the constitutional privilege of habeas corpus to noncitizens detained at Guantanamo Bay, Cuba. Courts will now be called upon to assess the propriety of American detainee treatment practices against unclear constitutional standards. The strength and contours of the due process protections the U.S. Constitution will afford these detainees is still an unsettled question. The Lexington Principles are designed to help guide the development of American due process standards as they move outside our borders. These Principles are also intended to serve as a model for those …

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

Law Faculty Publications

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.

Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty …

Peering Into The Judicial Magic Eight Ball: Arbitrary Decisions In The Area Of Juror Removal, 42 J. Marshall L. Rev. 813 (2009), Kimberly Wise

UIC Law Review

No abstract provided.

You Can Move In But You Can't Stay: To Protect Occupancy Rights After Halprin, The Fair Housing Act Needs To Be Amended To Prohibit Post-Acquisition Discrimination, 42 J. Marshall L. Rev. 751 (2009), Scott N. Gilbert

UIC Law Review

No abstract provided.

Adding Social Condition To The Canadian Human Rights Act, A. Wayne Mackay, Natasha Kim

Reports & Public Policy Documents

Almost a decade ago, in June 2000, the Canadian Human Rights Act Review Panel conducted a comprehensive review of the Canadian Human Rights Act [CHRA] and recommended that “social condition” be added as a prohibited ground of discrimination. Since then, no action has been taken to implement this recommendation, despite calls for action from international bodies, political actors, human rights agencies and organizations, and academic commentators to provide protections from discrimination for those suffering from social and economic disadvantage. The authors analyze the experiences at the provincial level with socio-economic grounds of discrimination, jurisprudential developments under the Canadian Charter of …

Rebalancing The Scales: Restoring The Availability Of Disparate Impact Causes Of Action In Title Vi Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.

Torture, Necessity, And Supreme Emergency: Law And Morality At The End Of Law, Zachary R. Calo

Scholarly Works

This paper employs Michael Walzer's concept of "Supreme Emergency" to address the permissibility of torture under conditions of necessity. It proposes moving beyond both utilitarian and deontological approaches to legal authority in order to understood necessity as a moral category. A full account of right action under conditions of necessity therefore demands taking account of the distinct yet cooperative function provided by legal and moral norms. A political official might therefore possess moral but not legal warrant to act in contravention of binding legal norms. Preserving the validity of law is essential to the economy of social reconstitution in the …

Introduction: International Review Of Constitutionalism Special Issue On Law, Poverty And Economic Inequality, Penelope Andrews, Frank W. Munger

Articles & Chapters

Editors introduction: This collection of articles by noted scholars examines what law and legal institutions can do to alleviate poverty and economic inequality in the new economic and political environment. The articles explore the contours of many struggles for distributive justice. They describe contemporary constitutional strategies, such as the incorporation of economic, social and cultural rights in constitutions in relation to grassroots anti-poverty campaigns in many parts of the world, including campaigns for rights in South Africa, and poor people's economic and human rights campaigns in the United States. Such campaigns face well-known disadvantages in contending with entrenched, powerful, and …

O To A, For Helping Kill O: Wisconsin's Decision Not To Bar Inheritance To Individuals Who Assist A Decedent In Suicide, Matthew Barry Reisig

American University Journal of Gender, Social Policy & the Law

No abstract provided.