Human Rights Law Commons^™

Dignity And Deepfakes, Michael Goodyear

Articles & Chapters

Today, we face a dangerous technosocial combination: AI-generated deepfakes and the Internet. Believable and accessible, these deepfakes have already spread sex, lies, and false advertisements across the Internet and targeted everyone from Taylor Swift to middle school students. Dissemination of deepfakes inflicts multifarious dignitary harms against their victims—especially women and LGBTQ+ persons—stripping them of control over their own identities, harming their reputations, and ostracizing them from society through shame.

Yet this is not the first time a new technology for capturing one’s likeness and a method for disseminating images threatened individuals’ dignity. In the late nineteenth century, the right of …

A New Hope: Perez V. Sturgis Public Schools Opens The Doors To Children With Disabilities, Richard D. Marsico

Articles & Chapters

In Perez v. Sturgis Public Schools, the United States Supreme Court ruled that parents of children with disabilities who allege that their child’s school discriminated against them because of their disabilities can seek compensatory monetary damages pursuant to federal laws that prohibit such discrimination without exhausting the administrative process of the Individuals with Disabilities Education Act. This seemingly innocuous decision, based on two obscure procedural provisions of the IDEA, overturned decades of circuit court decisions that ruled otherwise.

Perez has already had a profound effect, opening the courthouse doors for children with disabilities. In all twenty-five post-Perez decisions in which …

The So-Called Stateless: Firm Resettlement, African Immigrants, And Human Rights Violations In Mexico, Claire R. Thomas

Articles & Chapters

This paper explores Mexico’s reactionary migration policies, especially concerning the labeling of African migrants and asylum-seekers as so-called “stateless” and the subsequent unsolicited permanent residence status it offers, and address the numerous international and domestic legal violations contained within. Part I of this article presents the lived experiences of African asylum-seekers traveling through Mexico in 2015 and 2019 to demonstrate the direct impact of Mexican migratory policy changes. Many Black migrants and asylum-seekers, as well as Afro-Mexicans, have raised awareness of anti-Blackness in Mexico and of how racism is pervasive. Part II of this article explains Trump-era changes to U.S. …

The Distant Ships Of Liberty: Why Criminology Needs To Take Seriously International Human Rights Laws That Apply To Persons With Disabilities, Michael L. Perlin, Alison Lynch, Kelly Frailing, Ashley Juneau

Articles & Chapters

Persons institutionalized in forensic psychiatric facilities have been hidden from the public view for decades – physically, socially, and legally. The forensic population also faces multiple forms of discrimination, both for their criminal history and mental illness. This reality must be radically reconsidered in light of the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD), the first legally binding instrument devoted to the comprehensive protection of the rights of persons with disabilities. There has been, however, virtually no attention paid by criminologists to the potential impact of this Convention on forensic populations. In this …

"My Bewildering Brain Toils In Vain": Traumatic Brain Injury, The Criminal Trial Process, And The Case Of Lisa Montgomery, Alison Lynch, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced …

Going Global: An International Human Rights Approach To Russian Lgbtq+ Law And Practices, Michael Goodyear

Articles & Chapters

The current treatment of LGBTQ+ people in Russia is characterized by a discriminatory withholding of rights and political and societal isolation and endangerment. While this situation is well-documented, the legal analyses of it have been more limited. Those that have been undertaken in the past decade have focused almost exclusively on the regional European Court of Human Rights as the vehicle to address Russian discrimination against its sexual and gender minorities. The scholarship has long ignored an international human rights approach, however, which, through the treaty bodies of the nine core international human rights treaties, has developed a robust set …

The Interdependence Of Racial Justice And Free Speech For Racists, Nadine Strossen

Articles & Chapters

No abstract provided.

See This Empty Cage Now Corrode: The International Human Rights And Comparative Law Implications Of Sexually Violent Predator Laws, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law.

To briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far …

Severing The Connection Between Sex Trafficking And U.S. Military Bases Overseas, Anna Belle Hoots

Articles & Chapters

The sex trafficking of women and girls by US. military men remains an issue plaguing US. military bases overseas. While the US. government has offered several solutions to combat this specific niche of sex trafficking, the legislation and policy put forth are insufficient to eradicate the problem. After assessing the intersection of sex trafficking and overseas US. military bases, this Note both discusses why and proposes how, through the use of Status of Forces Agreements (SOFAs), all US. military bases abroad can and must commit to the prevention of this egregious human rights violation. Because SOFAs grant wide latitude to …

Editorial: Special Focus On 'Dignity Takings And Dignity Restorations', Penelope Andrews

Articles & Chapters

No abstract provided.

Central Issues In The Protection Of Child Migrants, Mary Crock, Lenni Benson

Articles & Chapters

In this introductory chapter we identify themes that will be carried throughout the book. We begin in section 2 with a discussion of the human rights challenges presented by children on the move, posing questions that our contributors will address as they build on the themes we identify. This is followed by an examination ofobstacles that have been created to recognising child migrants as rights bearers. After setting out in section 4 a brief outline of the book’s structure, the chapter concludes with some comments on global initiatives that have been made to address the challenges associated with mass migration …

'The Pain I Rise Above': How International Human Rights Can Best Realize The Needs Of Persons With Trauma-Related Mental Disabilities, Mehgan Gallagher, Michael L. Perlin

Articles & Chapters

No abstract provided.

Administrative Chaos: Responding To Child Refugees - U.S. Immigration Process In Crisis, Lenni Benson

Articles & Chapters

The Immigration court is the wrong forum to consider the protection needs of migrant children. Worse still, our multiple agencies that adjudicate parts of children’s cases combined with the rapidly shifting policies are causing administrative chaos for the children and the system.

Finding The Forum That Fits: Child Immigrants And Fair Process, Lenni Benson

Articles & Chapters

No abstract provided.

'Your Old Road Is/Rapidly Agin': International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

An earlier version of this paper was presented as the Lynn Stuart Weiss lecture at the American Psychological Association yearly conference, sponsored by the American Psychology-Law Society and the American Psychology Foundation, August 2016, Denver, Colorado.

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention given to another issue of international human …

God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …

Introduction, Brandt Goldstein

Articles & Chapters

No abstract provided.

The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe

Articles & Chapters

Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging the failure to charge in entire classes of cases. Undercharging can similarly undermine theefficacy and legitimacy of the criminal justice system. While few have focused on this question in thedomestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and misses …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

Justice Harlan's Enduring Importance For Current Civil Liberties Issues, From Marriage Equality To Dragnet Nsa Surveillance, Nadine Strossen

Articles & Chapters

No abstract provided.

The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Advocacy At The Leading Edge Of Social Change: The Importance Of Front Line Innovators, Frank W. Munger

Articles & Chapters

No abstract provided.

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

When Rights Work: Fragile Networks, Improbable Discourses And Unpredictable Globalizations Of Law - A Contemporary Thai Case Study, Frank W. Munger

Articles & Chapters

This is a case study of the legal practice of a young Thai “cause lawyer.” The study joins a growing number by other scholars who are skeptical of global convergence on a single form of the “rule of law,” and who argue instead that legal development in the new states of Asia and elsewhere will be path-dependent. Though this research examines advocacy by a relatively small group of practitioners, I argue that the study, together with my other case studies of social justice practitioners challenging the authority of government in different ways, provides a window on the development of law’s …

Trafficking In Law: Cause Lawyer, Bureaucratic State And Rights Of Human Trafficking Victims In Thailand, Frank W. Munger

Articles & Chapters

In this case study of a young, Thai “cause lawyer”, advocacy for human rights is considered in context. The most important elements of that context are the path of development of Thai political and legal institutions, globalisation of law, and the networks of relationships that penetrate the state. The case study shows that human rights advocacy by NGO lawyers can adapt creatively to unpromising conditions under which courts provide little access or oversight. At the same time, the case study raises profound questions about the ultimate independence of cause lawyers when the state must be made a partner in order …

'Love Is Just A Four-Letter Word': Sexuality, International Human Rights, And Therapeutic Jurisprudence, Michael L. Perlin, Alison Lynch

Articles & Chapters

One of the most controversial social policy issues that remains dramatically underdiscussed in scholarly literature is the sexual autonomy of persons with psychosocial and intellectual disabilities, especially those who are institutionalized. This population – always marginalized and stigmatized – has traditionally faced a double set of conflicting prejudices: on one hand, people with disabilities are infantilized (as not being capable of having the same range of sexual desires, needs and expectations as persons without disabilities), and on the other, this population is demonized (as being hypersexual, unable to control base or primitive urges). Although attitudes about the abilities and capabilities …

You Might Have Drugs At Your Command: Reconsidering The Forced Drugging Of Incompetent Pre-Trial Detainnes From The Perspectives Of International Human Rights And Income Inequality, Michael L. Perlin, Meredith Schriver

Articles & Chapters

Ever since the Supreme Court's 2003 decision in Sell v. United States, 539 U.S. 166 (2003), there has been a cottage industry of commentary on the question of whether the state can medicate an incompetent defendant for the purpose of making him or her competent to stand trial. Moreover, there have been multiple cases interpreting Sell broadly and narrowly, both in the context of medication issues and in the context of other treatments. Because of the vagueness of certain terminology, questions such as what a "serious" crime is, what "substantially" meant to the Court in Sell, and how the least …

'Friend To The Martyr, A Friend To The Woman Of Shame': Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior. The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the …

Striking For The Guardians And Protectors Of The Mind: The Convention On The Rights Of Persons With Mental Disabilities And The Future Of Guardianship Law, Michael L. Perlin

Articles & Chapters

In many nations, entry of a guardianship order became the “civil death” of the person affected. It has been accurately characterized as “civil death” characterization because a person subjected to the measure is not only fully stripped of their legal capacity in all matters related to their finance and property, but is also deprived of, or severely restricted in, many other fundamental rights, [including] the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association and the right to marry and have a family.

Guardianship is also frequently entered. In Hungary, for …