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Washington and Lee Journal of Civil Rights and Social Justice

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Washington and Lee Journal of Civil Rights and Social Justice

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Washington and Lee Journal of Civil Rights and Social Justice

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The Low-Hanging Fruit: Health, Rights, And The Commission, Bright Nkrumah

Washington and Lee Journal of Civil Rights and Social Justice

The year 2022 marked the 35th anniversary of the African Commission on Human and Peoples’ Rights. As it is a custom in many communities, when one reaches this milestone, it is an opportune time to introspect and reflect on the successes and challenges encountered in one’s journey. It is this template that the paper adopts to measure the prospects and setbacks of the African Commission in the advancement of the right to health. The Article argues that while the body remains the poster child of the continent’s human rights architecture, its inability to clearly articulate how states ought to advance …

The Right To Hope: A New Perspective Of The Right To Have Expectations, Opportunities And Plans, Juan Carlos Riofrio

Washington and Lee Journal of Civil Rights and Social Justice

Hope has been considered to be an important and constitutive aspect of the human person, not only by philosophers of all backgrounds, but also by international and national courts of several countries especially in the last decade. As an existential aspect of each person, hope has multiple manifestations in private and public life. Up until now, authors and some cases have been discussing particular manifestations of the right to hope. While in the past these courts were more aware of the hopes raised in judicial litigation and ordinary life, now the inmates’ hope of being released is the major point …

A Miscarriage Of Justice: How Femtech Apps And Fog Data Evade Fourth Amendment Privacy Protections, Rachel Silver

Washington and Lee Journal of Civil Rights and Social Justice

After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog …

Show Me The Money: How Bankruptcy Courts Could Become The Most Equitable Mass Tort Forum, Olivia Maier

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Two-Step has emerged as a dangerous bankruptcy maneuver for companies to defend against mass tort liability. The process allows a company to allocate all of its tort liability to a newly created company which then files for bankruptcy. The Bankruptcy Code provides instantaneous benefits for that new company, which tort victims are left unable to proceed with their claims. This has resulted in an inequitable process, and outcomes, for those victims as seen by the recent Johnson & Johnson Texas Two-Step. While this process is unjust, it has raised an interesting question: could a bankruptcy court become the …

Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy

Washington and Lee Journal of Civil Rights and Social Justice

Since they were created in the 1980s in Cleveland, Ohio, public nuisance receiverships have spread across the American Rust Belt. This Note critically analyzes the legal implications of public nuisance receiverships, which involve the intrusion onto private property for public purposes. Despite claims that these actions align with exceptions to due process or public nuisance principles, a deeper examination reveals their fundamental nature as government takings of private property. This Note dissects the legal framework within the context of the Fifth Amendment, debunking the applicability of the public nuisance exception, establishing that receiverships constitute takings, and highlighting conflicts with Anti-Kelo …

Submission To The United Nations Universal Periodic Review Of Yemen, Mwatana For Human Rights, Smith Family Human Rights Clinic

Human Rights Institute

This submission focuses on international human rights and humanitarian law violations by the Government of Yemen and allied armed groups, as well as by the armed group Ansar Allah (the Houthis), as supported by Mwatana’s original factfinding and documentation.

Connecting Nuclear Security To International Frameworks On Gender And Security, Kathleen A. Doty, Jessica S. Burniske

International Journal of Nuclear Security

The international community is slowly beginning to recognize the intersections between law and policy as it relates to international security—particularly arms control, nonproliferation, and disarmament—and the body of human rights law that addresses gender equality. Notably absent from this discussion is the field of nuclear security. Despite its historical underpinnings as an inherently domestic activity, nuclear security is thoroughly grounded in international treaty law. However, nuclear security is often overlooked in the international security context and has not been well-situated in international instruments that address gender equality. We argue that gender equality in nuclear security should be understood as an …

To Have And To Be: An International Human Right To Clean, Healthy, And Sustainable Environment, Deepa Badrinarayana

William & Mary Environmental Law and Policy Review

In July 2022, the United Nations General Assembly passed Resolution 76/300 (“the Resolution”)—affirming a human right to clean, healthy, and sustainable environment (“environmental human rights”). The Resolution essentially affirms a linkage between environmental human rights and “other rights and existing international law,” and “calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices,” to achieve environmental human rights.

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This Article offers a glass half-full perspective on the Resolution, with the caveat that the glass could rapidly become empty unless the right is internalized …

How To Punish Your Least Favorite Online Influencer: Wellness Checks As Swatting And Their Disproportionate Impact On Marginalized Creators, Tara Blackwell

Washington and Lee Journal of Civil Rights and Social Justice

Marginalized online creators are vulnerable to attacks using digital means of harassment including traditional swatting as well as the abuse of wellness checks that can act as swatting. Enabled by permissive Supreme Court 4th Amendment jurisprudence, malignant online actors have taken advantage of the ramshackle system of wellness checks that sends armed police officers with little training and even less compassion to the doors of individuals with reported mental health crises. This Note focuses on two polarizing influencers who have been subject to wellness check swatting after being very open about their mental health statuses online. This Note argues that …

“Social Workers By Day And Terrorists By Night?” Wounded Healers, Restorative Justice, And Ex-Prisoner Reentry, Allely Albert

Articles

Common to many post-conflict societies, former political prisoners and combatants in Northern Ireland are often portrayed as security threats rather than as potential contributors to societal peacebuilding processes. This distrust limits their ability to contribute to the transitional landscape and additionally hinders desistance processes during their reentry from prison. Drawing from the work of Maruna, LeBel, and others on “wounded healers,” this article critically examines the restorative justice work of ex-prisoners who have become involved in leadership roles within community based restorative justice. It is argued that such practitioner work can help former combatants overcome many of the challenges typically …

The War In Ukraine And Legal Limitations On Russian Vetoes, Anne Peters

Articles

A veto exercised by a permanent member of the UN Security Council to shield that state’s own manifest and prima facie aggression from condemnation and collective action by the Council is legally flawed. The UN Charter can be reasonably interpreted as prohibiting such a veto and depriving it of legal force. This flows from Article 27(3) of the Charter, in conjunction with the prohibition of the abuse of rights, as a manifestation of the principle of good faith, and the obligation to respect the right to life, against the background that the prohibition has the status of jus cogens. These …

The Rejection Of The Anti-Corruption Principle And Its Effect On Human Rights At Home, Juliet S. Sorensen

Northwestern Journal of Human Rights

21st century scholarship analyzing the Framers’ treatment of corruption asserts that their incorporation of anti-corruption means in the Constitution should be interpreted as a framework to inform contemporary judicial review and jurisprudence. Led by Zephyr Teachout’s article “The Anti-Corruption Principle,” this school of thought asserts that the anti-corruption principle should be on par with separation of powers and freedom of expression, a guiding lodestar in interpreting the Constitution.

This article submits that the anti-corruption principle of constitutional interpretation is, in fact, a rights-based approach to corruption, equating freedom from corruption with the other rights and liberties enshrined in the Constitution. …

Promises And Pitfalls In Un Regulation Of Judicial Independence, Martha Kiela

Northwestern Journal of Human Rights

This article investigates the current mechanisms and power of the UN to ensure judicial independence in the UN Member States. First, it surveys the UN bodies which play a role in creating international regulations for judicial independence and monitoring Member States’ compliance with them. Second, it analyzes the responses of these bodies to challenges to judicial independence by conducting case studies of Venezuela and Poland, and how these actions compare to those of other international organizations and tribunals. The central questions it seeks to answer are which mechanisms of review and enforcement have so far been the most effective in …

Writing And Resisting Colonial Genocide, Heidi Matthews, Luann Good Gingrich, Joel Ong

Articles & Book Chapters

Canada has pursued policies of Indigenous assimilation and annihilation, many of which continue today. Among others, these include ‘Indian residential schools’, the Indian Act, welfare-state child removals, the Sixties Scoop, the prohibition of cultural practices, forced sterilization and environmental destruction. We are scholars co-leading a large interdisciplinary programme of research studying ‘colonial genocide’. Our research seeks to understand how historic colonialism and its contemporary manifestations rely on genocidal logic for power and profit. While we begin in Turtle Island, our work has global application. The act of naming is a powerful analytical and political tool, and ‘genocide’ is one of …

Mitigating Sex Trafficking: Preventative Methods For Reducing Sexual Exploitation, Autumn Rain Monroe

University Honors Theses

In recent years, sex trafficking has become more well-known in the public sphere, generating activism and legislation in an effort to combat this human rights issue. With this increased awareness comes challenges in appropriately understanding sex trafficking. The general public and even lawmakers often do not understand the complete dynamic or complexities of sex trafficking. Definitional inconsistencies make it difficult to provide a universal definition of sex trafficking, contributing to misconceptions involving the methods of entry and the barriers to exiting. Ultimately, this prevents proper identification of victims, hinders the protection of victims, and the implementation of survivor-oriented legislation, meaning …

Border Enforcement As State-Created Danger, Jenny-Brooke Condon, Lori A. Nessel

St. John's Law Review

(Excerpt)

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of …

Racial Discrimination In Jury Selection: The Urgent Need For Sixth Amendment Protections For Black Capital Defendants, Claire Austin

Marquette Benefits and Social Welfare Law Review

In the U.S., death row is made up of a disproportionate number of black persons. In capital trials, black defendants often face all white juries. The deep-rooted racial discrimination in the justice system impacts jury selection because prosecutors use peremptory strikes to remove black jurors from the jury panel. As the law stands today, the Sixth Amendment guarantee of an impartial jury made up of a fair representation of the jury applies only to the pool of jurors called in for jury service, not those who are actually selected to hear the case.

This comment analyzes the Supreme Court decision, …

Community Benefit Sharing And Renewable Energy And Green Hydrogen Projects: Policy Guidance For Governments, Perrine Toledano, Chris Albin-Lackey, Maria Diez Andres, Martin Dietrich Brauch

Columbia Center on Sustainable Investment

The massive and rapid expansion of renewable energy is needed to limit global warming, so its social acceptance must be assured. While not a silver bullet, well-designed and governed benefit-sharing arrangements can lead to beneficial outcomes in ways that speak to affected communities’ needs and interests.

In partnership with the Green Hydrogen Organization and to support the efforts of the Planning for Climate Commission, this report offers high-level guidance to governments that seek to ramp up the development of renewable energy projects, including power generation and grid infrastructure. The report emphasizes that governments need a strong and coherent policy approach …

Politics Of Refusal: Justice And Liberation For Black Trans Lives, Quincy Smith

Dissertations, Theses, and Capstone Projects

This thesis investigates the challenges faced by Black trans people. In this thesis, I will explore how protest is used to highlight and confront the obstacles faced by the Black trans community. I will also examine the cultural work of Black trans people and what they teach us. The Brooklyn Liberation march and the TV show Pose is an important part of Black trans legacy. They both look at the complications surrounding Black trans lives and contributes to Black trans representation in protesting and fighting marginalization. This thesis will argue the importance of allyship to create safe space for Black …

Rights And Remedies: Rental Housing For Low-Income Households In The United States, David Ray Papke, Mary Elise Papke

Marquette Benefits and Social Welfare Law Review

The state of rental housing for low-income households in the United States is deplorable. Unaffordable, unsanitary, and insecure, this housing violates the internationally recognized right of housing. While the United States has never formally recognized that right, the right guarantees not only a roof overhead but also affordability, habitability, and security of tenure. Policies and programs seeking to remedy the problems in rental housing might consciously address these aspects of rental housing. Policies and programs of this sort will not be enough to eliminate all problems, but they would alleviate a matter of great embarrassment, namely, the most affluent country …

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …

The War On Drugs Or The War On Drug Users? Supervised Consumption Site In The United States As A Harm Reduction Strategy To Fight The Opioid Epidemic, Mary Crevello

Marquette Benefits and Social Welfare Law Review

Exploring the U.S. response to the opioid crisis, this study critically examines supervised consumption sites (SCSs) as a pragmatic approach. The historical framework of the "war on drugs" is scrutinized, highlighting its limitations and the necessity to shift from punitive measures towards more effective harm reduction strategies. Due to escalating opioid-related fatalities and inadequate harm reduction methods, the potential of SCSs is evaluated for short-term intervention. The Department of Justice's (DOJ) role in facilitating temporary measures to enable SCS operations is assessed, underscoring the urgency for a stable legislative framework to comprehensively address the crisis.

This research advocates for embracing …

Contested Actors Around The Initiation Of A Non-Judicial Settlement Mechanism For Past Gross Human Rights Violations: A Socio-Legal Study Of The Ppham Team, Abdul Munif

The Indonesian Journal of Socio-Legal Studies

The PPHAM Team (Non-Judicial Resolution of Past Gross Human Rights Violations) was initiated by the Jokowi-Ma'ruf administration as an alternative settlement mechanism for Past Gross Violations of Human Rights through the issuance of Presidential Decree Number 17/2022 (Keppres 17/2022). From this context, the establishment of the policy was criticized and rejected by civil society organizations (CSOs) and the Victims. This was because the PPHAM Team was deemed a measure of State responsibility “hand-washing” and an indication of impunity preservation. Therefore, this study aimed to evaluate the contestation of actor interests among the State, Victims, CSOs, and others, by emphasizing the …

A Genocide The World Has Ignored: Holding Governments And The Catholic Church Accountable For Residential And Boarding Schools Through The Icc, K. R. Redhage

Brooklyn Journal of International Law

The United States, Canada, and the Catholic Church committed genocide in an effort to control Indigenous people and steal their land. By various means, over the course of hundreds of years, these extant powers perpetrated this genocide, and the effects continue to be felt in Indigenous communities to this day. The residential and boarding school systems, which were only disbanded in the 1980s, are two examples of tools created by these governments and the Catholic Church, which led to tens of thousands of deaths of indigenous children and robbed many more of their families, culture, language, and traditions. This article …

Towards A Strengthening Of Non-Interference, Sovereignty, And Human Rights From Foreign Cyber Meddling In Democratic Electoral Processes, Francesco Seatzu, Nicolás Carrillo-Santarelli

Brooklyn Journal of International Law

States have resorted to meddling in the elections of their counterparts throughout history. Recently, though, there has been an exponential increased in the use of the possibilities provided by technology. Attention to this phenomenon has deservedly grown quickly and exponentially. This has led to debates focusing on the adequacy of international legal rules and general principles to respond to foreign cyber election interference. In many of these debates some have expressed doubts and skepticism about the adequacy of current international law to confront foreign election interference through cyber means. There have also been disagreements about the applicable standards to fight …

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

Battling Baby Brokers: A Comparative Analysis Of The United States’ Versus Europe’S Adoption Policies, Amanda P. Gonzales

Brooklyn Journal of International Law

Child adoption involves the permanent transfer of parental rights from a child’s biological or legal parents to another party. Parties in the Unites States (US) have engaged in this process in various forms for centuries. Today, over one hundred thousand children are adopted by American families each year. Many of these adoptions take place privately through agencies. An agency assists in the process of matching prospective adoptive parents with birth parents from whom they will adopt a child. In exchange for this assistance, the prospective adoptive parents pay tens of thousands of dollars in fees and expenses to the agency …