Monday, March 26, 2018
Professor Rebecca M. Bratspies of CUNY Law School has published a timely new article in the current issue of the University of Miami Law Review, titled The Climate for Human Rights. Here's the abstract, and a link to the article itself:
Climate change is the defining challenge of the 21st century. The United States government is currently ignoring the problem, but wishful thinking alone will not keep global mean temperature rise below 2ºC. This Article proposes a way forward. It advises environmental decision-makers to use human rights norms to guide them as they make decisions under United States law. By reframing their discretion through a human rights lens, decision-makers can use their existing authority to respond to the super-wicked problem of climate change.
Sunday, March 25, 2018
We are inspired by the peaceful, impactful marches in support of real gun control that took place all over the United States on Saturday. But for a moment to become a movement, we have to keep moving!
For those who teach, and those who just want to know more, here are some resources on gun violence and gun control from a human rights perspective.
-- The Harris Institute at Washington University- St. Louis, has launched a new initiative on gun violence and human rights. This page provides links to the Institute's testimony before the InterAmerican Commission on Human Rights when the Commission reviewed US gun sales and gun violence earlier this year, as well as information about the Institute's upcoming fall 2018 conference on Human Rights Perspectives on Gun Violence in America.
-- In 2016, the UN High Commissioner on Human Rights spoke about gun violence, condemning US policies that fail to restrict easy access to military-style weapons. The statement is described in the press release here.
-- Human Rights Watch has also been making the case that gun control is a human rights issue, as it did in this 2016 statement. More recently, HRW called out the scapegoating of mentally ill as a diversion from addressing access to guns.
We hope these resources can help each of you keep the dialogue going and the movement moving!
Thursday, March 22, 2018
In December 2017, UN Special Rapporteur on Extreme Poverty Philip Alston conducted an official visit to the United States, with stops in Washington, D.C., California, Georgia, Alabama, Georgia, West Virginia, and Puerto Rico. At the end of his visit, he issued a powerful concluding statement, observing that "[t]he United States is one of the world’s richest, most powerful and technologically innovative countries; but neither its wealth nor its power nor its technology is being harnessed to address the situation in which 40 million people continue to live in poverty."
The Special Rapporteur posted tweets and other social media updates throughout his visit, and was able to garner considerable media attention. This coming June, he will deliver a final report to the UN on his U.S. visit, so perhaps there will be another round of publicity.
Still, with the visit receding into the past over these few months, an LLM student at Northeastern Law School, Raphael Hirsch, felt that there was another way to tell the story of extreme poverty in the U.S.
Using the materials submitted to the UN Special Rapporteur, the Rapporteur's own tweets and photos, and media accounts of the visit, Raphael used the NuLawLab mapping platform to create a visual, interactive map that adds a tangible geographical dimension to the accounts of the Special Rapporteur's visit. Points on the map are coded, depending on whether they were visited by the Rapporteur or whether they submitted information for the Rapporteur's review. Copies of submitted documents and photos can be accessed by clicking the points. The map can also support embedded audio and video. A video of the Rapporteur's final statement can be accessed by clicking the D.C. points, and the Special Rapporteur will soon be submitting additional audio commentary to be added to some of the points.
Raphael hopes that this interactive map can be used as a teaching tool as students study the Special Rapporteur's visit, examine extreme poverty in the US., or think about ways to use visual mapping tools to engage the public. Please spread this work by sharing the map widely!
Wednesday, March 21, 2018
From John Pollock at the National Coalition for A Civil Right to Counsel:
Tuesday, March 20, 2018
For its next issue the Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring the interconnections between health and the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include creative housing developments; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new developments, tell success stories, or explore problems relating to issue such as affordable independent/assisted living, aging in place, or in-home care, and propose legal and policy recommendations. The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme.
The Journal is the nation’s only law journal dedicated to affordable housing and community development law. The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.
Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at firstname.lastname@example.org by April 15, 2018. Submissions of final articles and essays are due by May 1, 2018. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
Monday, March 19, 2018
Opposition to the death penalty continues to slowly gain ground.
On March 19, ,the Inter-American Commission on Human Rights (IACHR) urged the United States to stay the execution of Russell Bucklew, which is scheduled to take place on Tuesday, March 20, 2018 in the state of Missouri. According to the IACHR, the U.S. is subject to the international obligations derived from the Charter of the Organization of American States and the American Declaration since it joined the OAS in 1951.
The IACHR granted precautionary measures to protect the life and physical integrity of Russell Bucklew on May 20, 2014. The request for precautionary measures was filed in the context of a petition filed by the ACLU alleging the violation of rights recognized in the American Declaration. Through the precautionary measures, the Commission asked the U.S. to refrain from carrying out the death penalty until the IACHR had the opportunity to issue a decision on the petitioner's claims regarding the alleged violations of the American Declaration.
On March 18, 2018, the IACHR that the United States is responsible for the violation of the rights guaranteed in Articles I, XVIII, XXV and XXVI of the American Declaration, with respect to Russell Bucklew. The Inter-American Commission concluded, among other findings, that the United States did not provide him with effective access to judicial protection with regard to his right to be free from cruel and inhuman punishment and torture in the context of the application of lethal injection as the method of execution.
The IACHR noted that the United States is currently the only country in the Western Hemisphere to carry out executions.
Also on March 18, the Kansas City Star's editorial board called for abolition of the death penalty in Missouri and Kansas. Wrote the editorial board of this major midwestern daily, "[t]he death penalty has been discredited, and it doesn’t deserve to survive."
Sunday, March 18, 2018
Sprung from the new activism that has developed since the last presidential election, Women Lawyers On Guard is a non-partisan advocacy organization that mobilizes women lawyers to challenge conditions and laws that undermine democracy. The organization does so by supporting non-profit organizations through pro-bono legal assistance. In addition, the organization encourages women to run for office and takes public positions on important legal issues. The website informs:
"Women Lawyers On Guard is a national non-partisan organization harnessing the power of lawyers and the law in coordination with other organizations to preserve, protect, and defend the democratic values of equality, justice, and opportunity for all."
"Our members want to "do something" for our country, but they may not know how to find meaningful projects. We help fulfill your (non-profit's) commitment to work on urgent, mission-driven issues."
WLG is organizing lawyers who plan on Marching for our Lives on Saturday March 24th in D.C. Those who are interested, please meet on the steps of the National Portrait Gallery on the F Street side at 10 a.m.
Thursday, March 15, 2018
By Sital Kalantry, Clinical Professor of Law at Cornell Law School and author of Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India.
The Chicago-based Court of Appeals for the Seventh Circuit heard an appeal from Indiana last month which will decide whether a state can specify the reasons a woman can terminate her pregnancy. The law in question, signed in March 2016 by then-Governor Mike Pence, prohibits a woman from aborting a fetus on the basis of its sex, disability (including Down syndrome), race, color, national origin, or ancestry.
The lower court, the U.S. District Court Southern District of Indiana, found that the reason-based bans are clearly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey. That court found a state may not prohibit any woman for terminating her pregnancy before viability for any reason. The court also found the portion of the law that required abortion providers to inform their patients of the anti-discrimination provisions and the types of abortions those provisions prohibit and a portion of the law related to fetal tissue disposition were also found to be unconstitutional. The State of Indiana has now appealed this decision, bringing it to the Seventh Circuit.
Ten states have laws to punish doctors for performing an abortion knowing the woman is seeking it because she doesn’t want a child of a certain sex. There are injunctions in place in three of those states. For example, the sex-selective abortion ban in Arkansas was enjoined by a lower court because it was likely unconstitutional. In 1984, Illinois was the first to adopt a ban on sex-selective abortion, but the state eventually agreed to limit the statute only to abortions post-viability after the U.S. Supreme Court’s decision in Casey in 1993. Other states have other forms of reason-based restrictions: North Dakota and Ohio bans disability-selective abortion and Arizona has enacted a race-selective abortion ban.
Reason-based bans are sweeping the nation, particularly sex-selective abortion bans. If states are allowed to limit the reasons for which a woman can terminate a pregnancy, it will drive a huge hole into reproductive choice. Women will be subject to questioning about their motives, an inquiry that can be humiliating and invasive for someone already embarking upon what is likely a difficult decision. When medical professionals face criminal penalties for performing an abortion for the “wrong” reasons, this creates a strain on the doctor patient relationship, and jeopardizes the quality and accessibility of health care services overall.
The state of Indiana and other advocates for reason-based bans on abortion claim that the bans are needed to address discrimination in society. Using misinterpretations of narrow demographic data, anti-abortion advocates have even convinced some pro-choice legislative representatives that the bans on sex selection are needed to prevent widespread abortion of female fetuses among Chinese Americans and Indian Americans. This dominant (and false) narrative misrepresents data in order to play upon feminist concerns related to the desire of some people in some Asian countries to have at least one son. Playing on this stereotype has been successful: over half of state legislatures and the majority U.S. House of Representatives have voted to consider bans on sex-selective abortion.
Anti-abortion groups have also received support from some disability rights groups for bans on disability-selection abortion. An amicus brief in the Indiana case submitted by Down Pride, Saving Down Syndrome, Fondation Jérôme Lejeune, and Women Speak for Themselves, argues that permitting disability selective abortion risks eliminating entire communities of people with disabilities. This disability-selection ban would also prevent abortions for women whose fetuses have been diagnosed with severe disabilities and may require life-time medical care or whose children may die soon after birth.
Anti-abortion advocates also claim that race-selective abortions are needed to prevent the disproportionate rate of abortion among African American and Latina women. Indeed, some African American pro-life groups, such as the National Black Pro-Life Coalition, have spoken in support of such bans. Although the disproportionate rate of abortion among some minority groups is an issue worthy of examination, the notion that minority women are racially discriminating against their own fetuses is absurd, and cannot sustain a straight-faced discussion.
The U.S. Court of Appeals for the Seventh Circuit should find pre-viability reason-based bans to be unconstitutional under Roe and Casey. The constitutional status of post-viability bans is less clear. In light of the most recent reproductive rights case, Whole Woman’s Health, the Seventh Circuit may undertake a cost/benefit analysis if it applies the “undue burden” test to post-viability sex-selective abortion bans. In such a scenario, pro-choice advocates could argue that sex-selective abortion bans in particular will create a tension in the relationship between a medical professional and her patient, could lead to racial profiling by medical professionals, and will burden the rights of women who desire to obtain non-selective abortions. Importantly, the composition of the justices and whether or not they follow the dominant narrative put forth by anti-abortion activists (for example, that such bans are necessary to prevent widespread sex discrimination amongst Asian Americans) could also have a great impact on the ultimate decision of the Court.
If the Seventh Circuit decides that the Indiana reason-based bans are constitutional, many states will rush to limit the specific reasons for women obtaining abortion. The result may well be a Handmaid’s Tale-esque dystopia, where only a few are deemed to be the “right” reasons. Perhaps we will be headed in the direction of many of our South American neighbors that permit abortion only in the case of rape and to save the life of the mother. No matter how the Seventh Circuit rules, the case is likely headed to the U.S. Supreme Court. If reason-based bans are deemed to be constitutional, it will significant restrict women’s reproductive choice in many ways.
Wednesday, March 14, 2018
Amidst shocking tweets from the White House, shake-ups at the State Department, a disturbing nomination to direct the CIA, and litigation titled Sessions v. California, it can seem that there's little room for expert analysis and reasonable discourse. Rule of law? Human rights? Common decency? So last Administration!
Still, law reviews across the country continue to publish reasoned legal analyses in hopes that the madness may one day end, and in that spirit, a new Note in the Harvard Law Review is worth a look for those interested in US human rights and immigration issues. The article is titled American Courts and the UN High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis. Here's an excerpt from the abstract:
"In order to further the goal of a unified treaty regime and provide a more consistent message to the lower courts — and to people applying for asylum in this country and worldwide — the Supreme Court should adopt a more explicit standard of deference to the UNHCR. This Note argues that the UNHCR’s key role in a treaty regime that Congress elected to join, as well as its substantial expertise in interpreting and implementing the Convention, suggest that U.S. courts should presume the correctness of the UNHCR’s interpretations of text in U.S. law derived directly from the Convention, unless this interpretation clearly conflicts with other domestic law or the UNHCR’s own positions."
Tuesday, March 13, 2018
Joyce Radice of the University of Tennessee School of law has exposed as untrue the myth that juvenile records do not interfere with with life opportunities as juveniles become adults. Prof. Radice argues that juvenile records are much more easily accessible than most realize. The full article, published with Georgetown Law Journal, Vol. 106 No. 2 (2018) may be found here. The abstract reads:
The proliferation of adult criminal records and their harmful impact on people with convictions has received growing attention from scholars, the media, and legislators from both sides of the political aisle. Much less attention has been given to the far-reaching impact of juvenile delinquency records, partly because many people believe that juvenile records are not public, especially after a juvenile turns eighteen. That common notion is a myth.
This Article addresses that myth and adds to both the juvenile justice ad collateral consequences literature in four ways. First, The Juevenile Record Myth illuminates the variety of ways states treat juvenile records - revealing that state confidentiality, sealing, and expungement provisions often provide far less protection that than those terms suggest. Although juvenile delinquency records are not as publicly accessible as adult records, their impact is felt well beyod a juvenile's eighteenth birthday. No state completely seals juvenile delinquency records from public view or expunges them. Some states even publish juvenile records online, and almost all permit some degree of public access.
Second, this Article provides the first comprehensive analysis of the crucial role of nondisclosure provisions in eliminating the stigma of a juvenile record. Now that colleges, employers, state licensing agencies, and even landlords are increasingly asking about juvenile delinqency charges and adjudications, the confidentiality, sealng and expungement protections that do exist, will be significantly undermined unless states allow juveniles with records not to disclose them. Third, using recent literature on juvenile brain development and the recidivism research of criminologists, The Juvenile Record myth presents new arguments for why juvenile delinquency records should not follow a juvenile into adulthood - and why the state's obligation to help rehabilitate juveniles (an obligation typically recognized in a state's juvenile code) should extend to restricting access to juvenile records. Finally, Prof. Radice argues for a comprehensive and uniform approach to removing the stigma of a juvenile record through a combination of robust confidentiality, expungement, sealing, and non-disclosure statutes to facilitate a juvenile's reintegration.
Monday, March 12, 2018
by Justine Dunlap, U. Mass. Law
It’s yet another reminder of the tempestuous times that we inhabit, but the period during which Larry Nassar’s crimes took over the news cycle seems like a long time ago. I identify with a phrase turned by Jennifer Weiner in the March 3rd New York Times. Like Weiner, I have “fury fatigue” which, on occasion, is replaced by sadness fatigue. It’s understandable--there’s a lot to be both furious and sad about; one’s emotions just get worn out. But emotional numbness isn’t good either and, as fate would have it, the impact of Nassar’s crimes have again recently risen to the fore. Last week saw the resignation of Scott Blackmun, the chief executive of the US Olympics Committee. He resigned for health reasons but his resignation had been sought for some time due to the Nassar offenses and the Committee’s purported failure to respond properly.
As I have blogged earlier, it is hard to know where to begin when assessing the many failures that constitute the Larry Nassar case. The best place to start, though, is probably with those who were abused. Too often the bad actors get the attention, often obsessively so, while those wronged and victimized take a back seat. So, while not naming or focusing individually on the approximately 260 victims, let us acknowledge and revere the courage and persistence that those individuals possess.
Like many abuse survivors, these girls were young and had been abused by someone in authority. Even more, their abuser was their doctor, a person who was to safeguard their health. Consider the layers that they had to break through to report. Initially, perhaps their own disbelief that this was happening; that they experienced the abuse. Next, perhaps the anxiety of telling a teammate, fearful that they would not be believed or would be blamed for ruining the team or bringing down a person purportedly instrumental to both individual and team success. Imagine their having to tell parents and hope that they would be believed and supported. And what about reporting to coaches or other figures who had the power to do something and who, it appears, did not do anything or at least not enough.
Survivors of Nassar’s assault may find a balm for their wounds in a new book by another sexual assault survivor. Chessy Prout was a 15-year-old freshman in 2014 when she was assaulted by a high school senior at their private prep school, St. Paul's in Concord, N.H. Prout has used that horrible experience as a springboard to become an advocate for assault survivors. She speaks of her shame and self-doubt, as well as the social exclusion she experienced—including by her volleyball teammates—after reporting the assault. Recently, she released her book: I Have the Right To: A High School Survivor’s Story of Sexual Assault, Justice and Hope,” as a way to support and cheer on other survivors. Perhaps the individual survivors of Nassar’s crimes will find their way to the book or to Prout’s website: Ihavetherightto.org. It will, one hopes, provide comfort.
Sunday, March 11, 2018
This past Friday I was privileged to participate in a conversation on Race, Redemption and Restoration sponsored by the Public Welfare Foundation of Washington, D.C. The conversation brought together a nationwide group of those working with incarcerated and formerly incarcerated individuals. I was humbled to be in a room filled with the formerly incarcerated and those who support them. As a white woman, I was there to learn. And I dd. The discussions gave me a broader perspective on the historical background of mass incarceration, which has been effective through a combination of voter suppression strategies, "war on drugs" and other tactics to enhance black oppression and the suppression of everyone of color.
The conversation was honest and magnificent. Many in communities are doing amazing work to support the formerly incarcerated, including working to change laws and policies that aid unjust arrests and sentencing; developing housing, and creating communities that foster dignity. Future posts will focus on some of the organizations providing innovative and effective supports.
I wish I could better capture the conversation's tone, as well as the caring and brilliance of the day. But for now let me restate part of the discussion and something that is obvious. The most effective action that a white person can take is to inform and influence other whites. Tempering the resistance to creating racial equity is something that whites are particularly well poised to do. How to transform racist views is something whites must learn. The oppressed carry enough burdens. Building white empathy is insufficient because creating empathy alone does not result in change. White people have to figure this out and carry the burden of the conversation. It is not up to the oppressed to teach others how to change.
Thursday, March 8, 2018
Several of the contributors to this blog have benefited directly from the Fulbright program. In fact, our wonderful contributor Jonathan Todres is currently serving as a Fulbright scholar in Ireland. In a recent reflection on his experiences thus far, Jonathan wrote, "the real gift of a Fulbright is the opportunity to slow down, to read, to make connections, and to reimagine one’s work and all its possible paths." But as wonderful as Fulbright awards are for the recipient, they are also doing some good downstream. Fulbright scholars serve as the human face of the U.S. all over the world, extending US diplomatic reach in thousands of small ways. Further, the Fulbright program runs in both directions, sending hundreds of students to the U.S. every year to enliven our institutions and then return back to their home countries with a host of American friends, experiences and good will. These kinds of changes are among the things that foster the spread of the human rights message.
The Fulbright program has been in existence for more than 71 years, and it enjoys bipartisan support.
Yet this year, just like last year, the President's proposed budget would decimate this modest but effective program, cutting the Fulbright budget by 71%! The Fulbright Association is fighting back. Check out the Stand for Fulbright page, with a list of actions that you can take to help ensure that the Fulbright program continues, from signing a petition to visiting your representatives. To maximize the impact, the Fulbright Association is asking that we act before March 19. If you have ever had a Fulbright, or if you're thinking that there might be one in your future, or if your institution has sponsored a Fulbright, or if one of your students has benefited from a Fulbright -- then you know that this highly effective program makes the most of budget. Cuts will simply cut back its effectiveness.
Please Stand for Fulbright!
Wednesday, March 7, 2018
Two of our contributing editors, Cynthia Soohoo and Risa Kaufman, have authored an important issue brief for the American Constitution Society, titled "A Human Rights Lens on Detention and Forced Medical Treatment of Pregnant Women."
The issue brief trains a human rights lens on Loertscher v. Anderson, pending in the 7th Circuit. The case challenges Wisconsin Act 292 that allows child protective services to take a pregnant woman into custody to protect her “unborn child,” from “the time of fertilization to the time of birth,” based on concern that the woman’s purported use of alcohol or controlled substances poses a “substantial risk” to the physical health of her “unborn child.” The authors conclude that international human rights law illuminates the fundamental rights violations resulting from Wisconsin Act 292 and state civil confinement laws targeting pregnant women suspected of substance use, and thus provides a useful perspective for courts and legislatures considering similar civil detention schemes.
Regardless of the outcome in the circuit, the case may ultimately head to the U.S. Supreme Court. The Supreme Court has already intervened in the matter once, to reinstate the law pending appeal after the lower court ruled the law unconstitutional. This was a rare move, particularly since BOTH the district court and the court of appeals refused to stay the opinion pending the outcome of the 7th circuit review. The ACS issue brief draws on a human rights amicus brief filed with the 7th Circuit Court of Appeals.
Tuesday, March 6, 2018
On March 23 -24, 2018, Harvard Law School will host a conference, Human Rights in a Time of Populism. According to the organizers:
"The Human Rights in a Time of Populism conference will discuss the challenges that current developments characterized as populist pose to the goals of the international human rights system.
The multidisciplinary conference will address questions including:
What is populism? Is it increasing and, if so, why?
What challenges does populism create for the protection of internationally recognized human rights?
How can human rights NGOs and human rights institutions respond to these challenges?
Have human rights NGOs or institutions contributed unintentionally to the rise of populism by provoking backlash? Does increased populism point in other ways to lessons that should be learned by human rights NGOs or institutions?
Speakers will address these questions generally and within particular national or regional contexts."
For more information, look here.
Monday, March 5, 2018
Just Us Voices gives formerly incarcerated women an opportunity to tell their stories. The organization is soliciting formerly incacerated women to tell others about their experiences within and without of prison. To view a video of last years' voices click here. The penal system is not designed to accomodate women, their needs or their special circumstances. Just Us Voices encourages women to share their experiences as a form of healing, as a way to enfold others into the experience and eventually into advocacy.
Just Us Voices describes itself as "a new multimedia initiative that aims to transform the public dialogue on mass incarceration through storytelling and the lived experiences of formerly incarcerated women. Although women are the fastest-growing segment of the prison population, the national conversation on mass incarceration focuses primarily on the experiences of men. JustUS Voices will broaden the conversation to include perspectives and insights through the unique lens of gender, race and justice."
Sunday, March 4, 2018
This week, students from the Santa Clara Law International Human Rights Clinic and I participated in a meeting with the San Francisco District Attorney to discuss the investigation into the police shooting of Luis Góngora Pat. The DA, George Gascón, is a progressive Cuban-American, but he has not pressed charges against any of the police officers involved in any of the officer-involved shootings in San Francisco, including those responsible for the death of Luis Góngora, despite overwhelming evidence that the officers’ use of deadly force was neither proportionate nor a result of an imminent threat. The DA and his team explained how the law throughout the U.S. (and particularly in California) is heavily on the side of the police in such cases of use of deadly force. The DA emphasized that his hands were tied because the law actually allows police officers to use disproportionate force and even lethal force despite any imminent threat.
He even cited (approvingly) Amnesty International’s 2015 report that found that the laws of all 50 states on the use of force by police are incompatible with minimum international human rights standards. That study found that no law in the U.S. “limits the use of lethal force to the strict scenario of when an officer is facing an imminent threat of death or serious injury.” The study further found that only the “statutes of Idaho and New Mexico limit the use of lethal force to scenarios where the officer or the public face a threat of death or serious injury. However, even those two states do not require that the threat be “imminent” and therefore still fail to meet international standards in regards to necessity.”
To be clear, according to the DA and to Amnesty International’s study, California law (or the law in any other state) does not establish a requirement that lethal force be used only as a last resort; it does not require that non-lethal means be used first; nor does it require the suspect to pose an imminent threat of death or serious injury, or any kind of threat whatsoever.
How can we prosecute police officers who use disproportionate, unnecessary, excessive and deadly force, if the law actually allows them to do so? How do we stop this epidemic of impunity? I guess in addition to changing the laws, part of the answer requires District Attorneys to press charges in egregious cases like the shooting of Luis Góngora Pat, where the evidence clearly shows that the officers used disproportionate and unnecessary deadly force, and then allow the jury to determine whether a guilty verdict would be just (lawful?).
Thursday, March 1, 2018
Sometimes it seems like slow going, but cities and towns across the country continue to give momentum to the Cities for CEDAW campaign. On February 8, the Palo Alto Human Relations Commission voted unanimously to recommend a CEDAW ordinance to the Palo Alto city council. The Stanford student newspaper, which covered the hearing, reported that members of the Commission expressed some concern about the cost of implementing the ordinance, and seemed doubtful that Stanford would provide any free resources to assist. Nevertheless, the support for sending the ordinance on to a city council vote was unanimous.
The proposal for a CEDAW ordinance was previously presented to the Palo Alto City Council in November 2016, which then referred it to the Commission for a recommendation. In the intervening years since that proposal was first introduced, Santa Clara County, San Jose and Mountain View have joined Berkeley, Los Angeles, and the pioneering San Francisco as CEDAW Cities. The City Council member who acts as a liaison to the Commission, Cory Wolbach, urged the Commission to take a vote and send the item back to the City Council for consideration.
A City Council vote on the item has not yet been scheduled. Kudos to the members of the UN Association Mid-Peninsula Chapter who continue to pursue this through the ins and outs of local government!
Wednesday, February 28, 2018
By Jeremiah Ho
RebLaw 2018 took place at Yale Law School a few weeks ago. For those who might not be familiar with the yearly RebLaw conference, it is one of the largest student-run public interest conferences in the United States. The philosophy behind the conference is influenced by Gerald Lopez’s Rebellious Lawyering. And the conference’s mission is to build awareness amongst law students, practitioners, and activists of social change movements and to challenge hierarchies of race, gender, class, and expertise within legal practice and education.
At the University of Massachusetts School of Law, where I teach, the several students who attended this year’s RebLaw conference had also decided to organize a series of social justice and public interest events in the week gearing up to their conference trip to Yale. They called it “Justice Week” and they held various events ranging from a roundtable discussion featuring public interest lawyers from Massachusetts to a movie showing of “Vincent Who?” followed by a question-and-answer discussion on the issues surrounding Asian Americans and the justice system.
In between these events, I was asked to teach a workshop on how legal pedagogy replicates and sustains hierarchy in law schools and legal culture. At first, I was apprehensive. This was a tall order for a one-hour lunchtime event. But then I saw fervor of my students and saw an opportunity to have an honest conversation about what law schools do sustain intellectual and cultural hierarchy. In the last year especially, I have been concerned about how to connect my teaching of law with a duty that is more moral and meaningful. So I jumped right in and assigned two readings, Duncan Kennedy’s classic Legal Education as Training for Hierarchy and Shari Motro’s recent article in the Yale Journal of Law and Humanities, Scholarship against Desire.
Often the discussion about teaching law students to think critically revolves around the “Thinking like a lawyer” phrase, attributed to Christopher Langdell at Harvard in the 1870s. As Robin West and others have noted, most commonly that idea of thinking critically in law schools is siphoned within the context of learning doctrine. Despite some innovations, we still rely very heavily on Landgell’s formalist pedagogy to teach law—pedagogy that draws from 19th century perspectives of science and objectivity, and from Langdell’s heuristic that “law is complete” or that “law is a science.” Thus, our classroom investigations of the law through a body of cases, our lecture explorations animated by the Socratic method, and our adherence to doctrinal courses over clinical ones in the curriculum create a distorted view for our students about what law itself is and how it is connected to the human experience by being a vehicle for certain ends, such as justice. Our students spend a lot of time trying to learn the rule of law inductively and develop analytical skills that are contextually in service of the doctrinal aspects of law. In the law classroom, often the law takes shape in that 19th century form; if it’s complete and scientific, according to Langdell and his pedagogy, then the law resembles some animal perfected by some Darwinian journey that our students, like scientists, must ferret it out amongst the casebooks they purchase. But beyond that, our pedagogy leaves very little room to help students conceptualize the law. They end up accepting the law’s completeness. Thus, a good deal of American legal education ends up being rigorous but not intellectual, legalistic but not political, and analytical but not creative and personal.
The goal of my workshop was to get law students to see that the version of law and lawyering they have been exposed to has its perceptual limitations. The Duncan Kennedy piece is very good at giving language to observations about law schools—observations that, for better or worse, students often accept and take for granted. If law school is hierarchical, then who gets to be at the top of that hierarchy and what kinds of values and norms are replicated in furtherance of sustaining that hierarchy? If Langdell and his white-Anglo, male, “learned” 19th century objectivity propagated how we teach and have taught law for the last 140 years, then what does it mean for hierarchy when that same pedagogy remains? What does this mean for other voices and experiences in the law and its furtherance of justice?
What we have seen in the uptick in the last year with social and political developments, such as the #MeToo movement, are various responses to hierarchy. Meanwhile, events such as the passing of federal tax reforms that promote financial inequality are examples of embattled approaches of continued dominance by those who are invested in holding onto positions at the top of our society. I think law schools need to respond by broadening and challenging students to conceptualize the law differently than how it has been taught. Otherwise, Kennedy is right, we are training our students to think about the law critically but only in the sandbox and not out in the field. They don’t realize that the law is within them and that they bring the law to life. For instance, what kind of methodical and creative legal thinking would it take to link the debate surrounding gun rights and legislation, which has resided as a Second Amendment issue, with violation of human rights? Do we teach or at least encourage that in law schools?
The solution in regard to pedagogy that would destabilize the hierarchy set in law schools is what I gleamed from Shari Motro’s piece, Scholarship against Desire, where she rages against the hierarchical and assimilative nature of law faculty culture by weaving authenticity into her scholarly work and her law teaching. Whether concrete solutions to change our pedagogy wholesale to reflect a different conception of law, I’m not yet sure because I’m not convinced that there is just one overarching conception of law. Rather, I see pluralism. And thus, I assigned Motro’s work to challenge students—not just those interested in human rights or public interest—to bring their authenticity to the forefront of their studies and work. Pluralism is sustained by authenticity of experience. And law, after all, furthers human experiences.
At a time in which many social issues are rising to the forefront—some ripening very rapidly to be changed—I feel as if law schools are not doing enough to teach future legal thinkers and problem-solvers to explore the possibilities of law, rather than its probabilities. I see this domestically in the U.S. as a challenge to the forward momentum of human rights thinking on issues in which lawyers have input or agency. I also hope myself to be thinking about ways to address this issue as someone in the academy.
Tuesday, February 27, 2018
Monday's post briefly referenced police violence toward sex workers. But police violence toward women is a chronic and significant problem, particularly toward women of color. Navigating Force and Choice documented police violence toward sex workers, especially toward transgender women. But police sexual violence occurs across a wide spectrum. Andrea Ritchie has documented police sexual violence toward women of color in Invisible No More.
Ms. Ritchie argues that the problem is systemic, but prosecutor and others address only incident based allegations of police sexual violence. A Buffalo study found that a report of police sexual violence happens every five days. That report noted the range of victims to cover adolescents, those participating in ride-alongs, as well as those forced to engage in sexual behavior to avoid arrest. Nearly all victims were women and nearly all perpetrators were men.
Police sexual violence was documented by former police chief Norm Stamper, as well. One chapter in his book details police sexual violence which the author states is present in all police departments. He refers to these officers as rapists in uniform. As with all manner of police violence, and in particular violence against women, local command leadership can create an atmosphere of tolerance. Ms. Ritchie, Mr. Stamper and the Buffalo report all agree that the problem rests in police culture and is systemic, not isolated. In the days of #Me Too, this particularly hideous form of misogyny needs airing.