Human Rights Law Commons^™

Border Babies — Medical Ethics And Human Rights In Immigrant Detention Centers, Sondra S. Crosby, George J. Annas

Faculty Scholarship

Providing decent medical care for families in U.S. detention centers near the Mexican border has become exceedingly difficult over the past 2 years. Trauma was inflicted on migrants to deter others from attempting to enter the United States. A cornerstone of deterrence was the “zero tolerance” policy that forcibly separated children from their parents at the border. Photographs of children confined in cages horrified Americans, who demanded that the policy be rescinded. It was, but family separations continue and have been made even worse by the Migrant Protection Protocol (MPP) — which the U.S. Supreme Court will most likely review …

Faith-Based Approaches To Ecological Harmony And Environmental Protection, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Trafficking To The Rescue?, Julie A. Dahlstrom

Faculty Scholarship

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking …

The Elastic Meaning(S) Of Human Trafficking, Julie A. Dahlstrom

Faculty Scholarship

What is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts—like domestic violence, sexual assault, labor exploitation, and prostitution—with which it often overlaps? These questions have become increasingly salient after the U.S. Congress defined the crime of human trafficking in the Victims of Trafficking and Violence Protection Act of 2000 (“TVPA”). Since then, all fifty states have passed legislation with varying definitions of the crime. Congress also has re-entered the field with subsequent legislation, expanding the crime to capture new conduct.
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Race, Surveillance, Resistance, Chaz Arnett

Faculty Scholarship

The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …

Civil Rights In Living Color, Vinay Harpalani

Faculty Scholarship

This Article will examine how American civil rights law has treated “color” discrimination and differentiated it from “race” discrimination. It is a comprehensive analysis of the changing legal meaning of “color” discrimination throughout American history. The Article will cover views of “color” in the antebellum era, Reconstruction laws, early equal protection cases, the U.S. Census, modern civil rights statutes, and in People v. Bridgeforth—a landmark 2016 ruling by the New York Court of Appeals. First, the Article will lay out the complex relationship between race and color and discuss the phenomenon of colorism—oppression based on skin color—as differentiated from …

Cruzan’S Legacy In Autonomy, Kathy Cerminara

Faculty Scholarship

No abstract provided.

Advancing Technology And The Changing Conception Of Human Rights, Olympia Duhart

Faculty Scholarship

No abstract provided.

See No Evil: A Look At Florida's Legislative Response To Holding Hotels Civilly Liable For "Turning A Blind Eye" To The Sex Trafficking Monster Hiding Behind Closed Doors, Lori N. Ross

Faculty Scholarship

No abstract provided.

Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly

Faculty Scholarship

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Third Country Deportation, Sarah R. Sherman-Stokes

Faculty Scholarship

The large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially—in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this “shadow deportation” is what I term “third country deportation”—the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded.

This article …

Ranking For Good?: A Comparative Assessment Of The Performance Of French Corporations In Human Rights Rankings, Erika George, David Restrepo Amariles

Faculty Scholarship

This article proceeds as follows. First, it will define well-being and discuss the ways in which a range of human rights must be protected to promote well-being. Next, it will explain the ways businesses can impact well-being, for good or for ill. This will be followed by a discussion on the relevant legal and policy frameworks in France that regulate information relevant to the social and environmental impacts of business, including the Duty of Vigilance Law and the National Action Plan of France for Implementing the U.N. Guiding Principles on Business and Human Rights. Using examples of leading French multinational …

Disaggregating Corporate Liability: Japanese Multinationals And World War Ii, Timothy Webster

Faculty Scholarship

The past two decades have witnessed unprecedented attention to corporate legal liability for human rights abuses. Yet the supporting jurisprudence is relatively thin. Scholars generally agree that corporations can incur legal liability for serious violations of international human rights law. But courts find any number of ways to avoid such a result. This Article finds qualified support for an emergent norm of corporate civil liability from recent litigation in Japan. Specifically, the transnational war reparations litigation of the past three decades has yielded a consistent jurisprudence of qualified liability. Courts detail the abuses committed by Japan's largest multinational corporations, and …

The Long Tail Of World War Ii: Jus Post Bellum In Contemporary East Asia, Timothy Webster

Faculty Scholarship

The shadow of World War II still looms over East Asia. Unlike the West, issues of state accountability, corporate liability, and individual reparation roil the victims, governments, and civil society organizations. It stills form a critical, often controversial, backdrop for international relations among China, Japan, Korea, and other Asian nations. This chapter fills an important gap by focusing on jus post bellum outside of the West. The chapter examines the results, motivations, and achievements of civil litigation, namely approximately one hundred World War II reparations lawsuits filed in Japan. In so doing, it answers three related questions. Why does World …

Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji

Faculty Scholarship

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

Populism And International Human Rights Law Institutions: A Survival Guide, Laurence R. Helfer

Faculty Scholarship

Confronting hostile governments is nothing new for international human rights courts, treaty bodies, and other monitoring mechanisms. Yet there is a growing sense that the recent turn to populism poses a new type of threat that international human rights law (IHRL) institutions are ill equipped to meet. This chapter begins by identifying the facilitating conditions that have, until recently, supported the international human rights system. It then assesses the distinctive challenges that populism poses to IHRL institutions. Turning from diagnosis to prescription, the chapter reviews a range of legal and political tools that might be deployed to address those challenges …

Power In Human Rights Advocate And Rightsholder Relationships: Critiques, Reforms, And Challenges, Sarah Knuckey, Benjamin Hoffman, Jeremy Perelman, Gulika Reddy, Alejandra Ancheita, Meetali Jain

Faculty Scholarship

Human rights advocacy can construct passive “victims,” objectify or displace rightsholders and affected communities, and contribute to their disempowerment. In response to critiques – made by rightsholders, activists, and scholars alike – about the values and effects of such disempowering advocacy models, many advocates are increasingly prioritizing an understanding of these dynamics and reforming practice to better center and support the agency of directly affected individuals and groups. However, the tactics and modalities of these efforts are under-examined in scholarly literature, and many human rights advocates lack access to adequate documentation of tactics and spaces for peer learning. In this …

Covid-19 And Prisoners’ Rights, Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, Anita N.H. Yandle, Alexis Hoag, Bernard E. Harcourt

Faculty Scholarship

As COVID-19 continues to spread rapidly across the country, the crowded and unsanitary conditions in prisons, jails, juvenile detention, and immigration detention centers leave incarcerated individuals especially vulnerable. This chapter will discuss potential avenues for detained persons and their lawyers seeking to use the legal system to obtain relief, including potential release, during this extraordinary, unprecedented crisis.

Linked Fate: Justice And The Criminal Legal System During The Covid-19 Pandemic, Susan P. Sturm, Faiz Pirani, Hyun Kim, Natalie Behr, Zachary D. Hardwick

Faculty Scholarship

The concept of “linked fate” has taken on new meaning in the face of the COVID-19 pandemic. People all over the world – from every walk of life, spanning class, race, gender, and nationality – face a potentially deadly threat requiring cooperation and sacrifice. The plight of the most vulnerable among us affects the capacity of the larger community to cope with, recover, and learn from COVID-19’s devastating impact. COVID-19 makes visible and urgent the need to embrace our linked fate, “develop a sense of commonality and shared circumstances,” and unstick dysfunctional and inequitable political and legal systems.

Nowhere is …

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

The Virtue Of Vulnerability: Mindfulness And Well-Being In Law Schools And The Legal Profession, Nathalie Martin

Faculty Scholarship

This article examines the role of vulnerability in transforming individual relationships, particularly the attorney-client relationship. In this essay, Martin argues that broadening our expressions can improve our client relations and decrease the likelihood that when that inevitable mistake occurs, we will be sued for it. Also, based upon virtue ethics, that practicing vulnerability is also virtuous and thus worthwhile in and of itself.

This essay starts by describing the traits people look for in lawyers as well as evidence that clients often feel that their lawyers are less than human. Then examines how legal education contributes to this problem by …

The Second International Conference On Climate, Nature, And Society: Selected Conference Excerpts, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Peace In The Home, Peace In The Nation: Conceptions Of Justice For Rural Women Of Northern Uganda, Jennifer Moore

Faculty Scholarship

UNM International Studies Institute Fall Lecture Series 2019 "Peacemaking In Africa"

Mask Off - The Coloniality Of Environmental Justice, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The Past As Present, Unlearned Lessons And The (Non-) Utility Of International Law, Susan M. Akram

Faculty Scholarship

The contemporary moment provides an acute illustration of the dangers of historical amnesia—as if the Trump Administration’s policies of exclusion, extremist nationalism, and presidential imperialism were singular to ‘now,’ and entirely reversible in the next election. This Article argues to the contrary; that we have been down this road before, and the current crisis in immigration and refugee policies is the inevitable development of trends of racism, including anti-Arab, anti-Muslim racism and xenophobia, that have only become normalized by the populist resurgence of Trumpism. If this premise is correct—that we are experiencing a culmination of a historical trajectory—what lessons from …

Latin American Racial Equality Law As Criminal Law, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Suing Russia: How Americans Can Fight Back Against Russian Intervention In American Politics, William J. Aceves

Faculty Scholarship

The evidence of Russian intervention in American politics is overwhelming. In the midst of the 2016 US presidential campaign, a growing number of inflammatory social media posts addressing various political topics emerged on Facebook, Instagram, and Twitter. These posts supported the candidacy of Donald Trump, condemned the influx of refugees and migrants, and promoted racial divisions in the United States. Through clicks, likes, shares, and retweets, these messages reached millions of Americans. But, these messages did not originate in the United States; they were drafted and disseminated through inauthentic social media accounts created and controlled by the Internet Research Agency, …