Human Rights Law Commons^™

Psychiatric Restraint And Seclusion: Resisting Legislative Solution, Stacey A. Tovino

Faculty Articles

The use of restraint and seclusion in the American psychiatric setting has a rich history - rich in medical, ethical, legal, and social controversy. For centuries, mental health care providers used movement restrictions and solitary confinement to manage psychiatric patients. Superintendents of eighteenth and early nineteenth century insane asylums and other institutions of confinement believed that strait-waistcoats, "tranquilizer chairs," "maniac beds," chains, shackles, and "quiet rooms" deescalated agitation and promoted self-control. Reforms beginning in the nineteenth century helped make some psychiatric institutions more humane, in part because staff members were trained to find ways to calm potentially violent patients without …

Habeas Without Rights, Jared A. Goldstein

Law Faculty Scholarship

For almost six years, the habeas corpus petitions brought by foreign detainees held by the United States at Guantanamo Bay, Cuba, have stalled because the courts have struggled to answer a single question: whether the detainees possess enforceable rights. Although that question remains unresolved, the courts have uniformly concluded that the Guantanamo habeas claims, as well as the habeas claims brought by other accused enemy combatants, require a showing that the detainees possess cognizable rights violated by the detentions, most especially constitutional rights. This Article argues that the courts have been asking the wrong question and that habeas relief does …

Judicial Selection As It Relates To Gender Equality On The Bench, Adam Goldstein

Cardozo Journal of Equal Rights & Social Justice

The note examines the relationship between judicial selection methods and gender equality on the bench, arguing that merit selection does not necessarily lead to greater gender diversity compared to other methods like appointments or elections. Despite claims that merit-based systems promote diversity, empirical evidence suggests that elected judges may achieve comparable or greater gender representation.

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

In Defense Of The Roosevelt Court, Wilson Ray Huhn

Florida A & M University Law Review

The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose--the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build. Two justices presently serving on the Supreme Court--Justice Antonin Scalia and …

Climate Change, The United States, And The Impacts Of Arctic Melting: A Case Study In The Need For Enforceable International Environmental Human Rights, Randall S. Abate

Journal Publications

Climate change is currently the most significant and daunting international environmental problem, with disproportionate and devastating impacts on indigenous groups. The plight of the Inuit is illustrative of a larger need to recognize and enforce international environmental human rights violations. Part I of this Article examines the evolution of various approaches to environmental human rights theories in (1) United States law, (2) international human rights law instruments, and (3) the laws of other nations. Part II considers the scientific evidence and legal theory underlying the Inuit petition before the Inter-American Commission on Human Rights and explores how this scenario underscores …

Self-Incrimination And The European Court Of Human Rights: Procedural Issues In The Enforcement Of The Right To Silence, Mark Berger

Faculty Works

This article provides an analysis of the procedural aspects of the right to silence falling within Art. 6 of the European Convention on Human Rights. The author examines the jurisprudence of the European Court of Human Rights under the following areas: overview, appearance to answer questions, a demand for documents, false responses, warnings and adverse inferences. The subject is discussed at investigation stage, just prior to and during civil and criminal proceedings. The piece concludes with summaries of the jurisprudence in these varying circumstances.

A Theory Of Expressive International Law, Alex Geisinger, Michael A. Stein

Vanderbilt Law Review

What is the "pull of international society" and how does it influence the willingness of States to enter into or comply with international law? Since Grotius first identified the concept that States seek esteem from the broader global community, its parameters have proven illusive. Nonetheless, the notion remains central to discussions of why States comply with international agreements.

Understanding the reputational mechanism that impels State compliance is especially important to human rights treaties. Unlike other regimes, States that ratify and abide by the terms of these instruments receive neither reciprocal nor immediate benefits.

Consequently, the desire for international esteem is …

Security And Human Rights, Liora Lazarus, Benjamin J. Goold

All Faculty Publications

In the wake of the events of September 11th, the task of reconciling issues of security with a respect for fundamental human rights has emerged as one of the key challenges facing governments throughout the world. Although the issues raised by the rise of security have been the subject of considerable academic interest, to date much of the debate surrounding the impact of security on human rights has taken place within particular disciplinary confines. In contrast, this collection of essays from leading academics and practitioners in the fields of criminal justice, public law, international law, international relations and legal philosophy …

Public Protection, Proportionality, And The Search For Balance, Benjamin J. Goold, Liora Lazarus, Gabriel Swiney

All Faculty Publications

This report examines how courts in the UK and Europe respond when human rights and security appear to conflict. It compares cases from the United Kingdom, France, Germany, Spain, and the European Court of Human Rights (ECtHR). It examines how rights are applied and how courts use the concept of proportionality to mediate conflicts between rights and security. The report concludes that British courts are less consistent in their application of proportionality than countries with constitutional rights protections which tend to be more rigorous in their protections of rights than are countries, like the UK, that rely instead on the …

The Supreme Court Of Canada Crumbles Mr. Christie's Cookie, Anthony F. Sheppard

All Faculty Publications

In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 SCR 873, the unanimous full bench of the Supreme Court of Canada upheld a provincial sales tax ("PST") on legal services, rejecting a Charter challenge and overturning the lower courts' decisions that partially invalidated the tax. The taxpayer, a lawyer practising poverty law in British Columbia, challenged the validity of a provincial sales tax charging 7 percent on fees billed for legal services and payable on billing. The PST on legal services required lawyers and notaries public in private practice to add the tax onto their billings. The …

Book Review, Transitional Justice In The Twenty-First Century: Beyond Truth Versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena Eds., 2006) And Reconciliation In Divided Societies: Finding Common Ground (Erin Daly & Jeremy Sarkin Eds., 2006), Mark Drumbl

Scholarly Articles

It took a long time to get there but, near the close of the last millennium, humanity embraced measured accountability – instead of the extremes of impunity or vengeance – as the appropriate fate for perpetrators of mass atrocity. This embrace has prompted the construction of institutions, such as the International Criminal Court and the various ad hoc international or internationalized tribunals, to actualize this accountability imperative.

But this institution-building is only the start of the justice matrix. It is not the end point. A newer second generation of scholars and activists presses on. Agreeing on the need for accountability …

Falling Through The Cracks: The Impact Of Vawa 2005’S Unfinished Business On Immigrant Victims Of Domestic Violence, Mary B. Clark

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Using Human Rights Treaties To Resolve Ambiguity: The Advent Of A Rights-Conscious Charming Betsy Canon, Melissa A. Waters

Scholarship@WashULaw

This article considers the role of international human rights law in the domestic context, and examines in particular the use of what the author calls a "rights­-conscious Charming Betsy canon", whereby judges in New Zealand, Canada, the United States and Australia have interpreted statutory provisions (focusing on the case study of immigration law) so as to be consistent with international human rights norms. The author also considers the more radical use of the canon, proposed in particular by the High Court of Australia's Justice Kirby, which proposes that even constitutional texts may be interpreted to be consistent with international law, …

Seeking Protection: Recognition Of Environmentally Displaced Persons Under International Human Rights Law, Brooke Havard

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Unlocking The Doors To Justice: Protecting The Rights And Remedies Of Domestic Workers In The Face Of Diplomatic Immunity, Amy Tai

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Culture, Power, And Law: Thinking About The Anthropology Of Rights In Thailand In And Era Of Globalization, Frank W. Munger

Articles & Chapters

No abstract provided.

The Legacy Of Louis Henkin: Human Rights In The "Age Of Terror" – An Interview With Sarah H. Cleveland, Sarah H. Cleveland

Faculty Scholarship

What effect has Professor Henkin's work had upon your own thoughts or scholarship in the human rights field?

My scholarly work spans the fields of international human rights and U.S. foreign relations law. I am particularly interested in the process by which human rights norms are implemented into domestic legal systems, the role the United States plays in promoting the internalization of human rights norms by other states, and the mechanisms by which the values of the international human rights regime are incorporated into the United States domestic legal system.

To say that Professor Henkin's work has contributed to my …

Justice Should Be Done, But Where? The Relationship Between National And International Courts, Naomi Roht-Arriaza, Laura Dickinson, Christopher K. Hall, Paul Seils

Faculty Scholarship

No abstract provided.

The Legality Of The West Bank Wall: Israel's High Court Of Justice V. The International Court Of Justice, Victor Kattan

Vanderbilt Journal of Transnational Law

This Article offers a critique of the decision reached by Israel's High Court of Justice in the Mara'abe Case (2005) as well as some aspects of the International Court of Justice's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004). The Article takes a socio-legal and facts-based approach to analyzing the decisions' discussions of settlements, self-determination, and self-defense, examining all three topics in light of several recent legal and political developments.

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Faculty Scholarship

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Assessing The Universal Declaration On Bioethics And Human Rights: Implications For Human Dignity And The Respect For Human Life, O. Carter Snead

Journal Articles

As advances in biomedical science and biotechnology continue to confer vast new powers to subdue nature for “the relief of man’s estate,” vexed moral and ethical questions inevitably arise about the use of such capacities. To what ends should they be applied? How might they be abused? Are they safe? What is the human meaning of such new powers? Might their use threaten human dignity? What does scientific freedom demand? What does justice require? Who should have access to the fruits of such scientific advances?

In democratic regimes, these questions do not long remain the subject of mere academic reflection …

Regional Advocacy Networks And The Protocol On The Rights Of Women In Africa, Melinda Adams, Alice J. Kang

Department of Political Science: Faculty Publications

While there has been a significant amount of research on transnational feminist activism at the global level, many feminist transnational advocacy networks are mobilizing within world regions. The lack of attention to the regional level has created a considerable imbalance in research on transnational activism. This article's first objective is to define regional advocacy networks (RANs) as a collection of individuals and organizations from the same world region working together toward a common goal. The article's second objective is to explore the conditions under which RANs are influential. We investigate conditions for RAN success through a case study of an …

Sanchez-Llamas, American Human Rights Exceptionalism And The Vccr Norm Portal, Margaret E. Mcguiness

Faculty Publications

This Essay examines Sanchez-Llamas v. Oregon within the line of cases challenging U.S. non-compliance with the notification requirements of the Vienna Convention on Consular Relations (VCCR). The VCCR litigations arose as a response to American death penalty exceptionalism. Viewed through the lens of transnational efforts to integrate international human rights norms into the United States, Sanchez-Llamas illuminates the ways in which American human rights exceptionalism—in its many forms—is being actively contested and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.

A Feminist Human Rights Law Approach For Engendering The Millennium Development Goals, Christina T. Holder

Cardozo Journal of Equal Rights & Social Justice

The note critiques the Millennium Development Goals (MDGs) for adopting a technocratic, economic-focused approach to poverty reduction, which neglects the equitable distribution of development benefits and the structural causes of poverty. It advocates for a feminist human rights law approach that integrates Third World Feminism and human rights frameworks to create a more inclusive and rights-based strategy for achieving the MDGs, particularly in empowering women and addressing gender inequalities.

Decentralizing The Fight Against Human Trafficking In The United States: The Need For Greater Involvement In Fighting Human Trafficking By State Agencies And Local Non-Governmental Organizations, Shashi Irani Kara

Cardozo Journal of Equal Rights & Social Justice

The note argues that while the federal government has made significant strides in combating human trafficking through legislation like the Trafficking Victims Protection Act (TVPA), these efforts are insufficient due to the decentralized nature of the crime. It emphasizes the necessity for greater involvement from state agencies and local non-governmental organizations (NGOs) to effectively address the diverse and localized manifestations of trafficking.

Coming Into Compliance With Trips: A Discussion Of India's New Patent Laws, Jeffrey Colin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Turning The Health Professional Carousel: Is Canada Undermining Human Rights In Developing Countries?, Karinne Lantz

Articles, Book Chapters, & Popular Press

This article will address the issue of health professional migration, with a specific focus on how this migration affects health systems in developing countries. The central question being examined is whether or not states have an obligation to ensure that their policies – or actions by private actors based in their states – do not undermine the delivery of healthcare in other states. After exploring this obligation, this article will analyze how the issue may be effectively addressed by drawing upon the experience of the United Kingdom; how successful has the U.K. been in meeting its obligation? What are the …

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

Publications

No abstract provided.

Who's Afraid Of Geneva Law?, Aya Gruber

Publications

According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the …