Tuesday, June 15, 2021
Event: 6/16 ABA Webinar on Feminist Perspectives on the US Response to the Crisis at the Southern Border
Tomorrow, June 16, 2021, from 12:00 – 1:30pm ET, join the American Bar Association Group on International Law for a webinar on the intersection of immigration, human rights, and inequality. The distinguished webinar panelists are: Deborah Anker, Blaine Bookey, Devon Cone, and Bardis Vakili. More information on tomorrow’s presentation is available here.
As part of the ABA’s three-session Global Women Series taking place this week, tomorrow's panelists will discuss the humanitarian crisis at the southern border of the United States, the disproportionate impact on women and children seeking refuge in the US, and ways that a feminist policy agenda can support the Biden-Harris administration’s response.
To register for this free event, click here.
Monday, June 14, 2021
New Article: White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States
Baylis, Elena A., White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States (May 18, 2021). U. of Pittsburgh Legal Studies Research Paper No. 2021-16, University of Illinois Law Review, 2022 forthcoming. Abstract below.
Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have a federal law prohibiting crimes against humanity. This Article first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.
Thursday, June 10, 2021
Event: June 24th Discussion on the rights of indigenous women and girls with the UN Committee on the Elimination of Discrimination Against Women
The Committee on the Elimination of Discrimination against Women will hold a virtual day of general discussion on the rights of indigenous women and girls. The Committee states that "the purpose of the day of general discussion is to stimulate debate and seek inputs for the elaboration by the Committee of a General Recommendation on the rights of indigenous women and girls. The aim of the General Recommendation will be to provide guidance to States parties to the Convention on the measures they should adopt to ensure full compliance with their obligations under the Convention to respect and protect the rights of indigenous women and girls."
The discussion will take place online on Thursday June 24, 2021, from 12:30pm-2:30pm and from 4:00pm-6:00pm (Geneva time)/ 6:30am-8:30am and 10:00am-12noon (Eastern time). (Link to be posted here at a later date).
The Committee welcomes written submissions which should be sent electronically in Word format to Marco Zanin, Human Rights Officer, at email@example.com, indicating "Submission - General discussion on GRIWAG" in the subject. Submissions must not exceed a maximum of 3,300 words and must be received by June 18, 2021 at the latest.
If you wish to deliver a brief oral statement during the discussion, it must not exceed 3 minutes and you must indicate your intention to do so and must send your statement electronically in Word format to Marco Zanin at firstname.lastname@example.org by June 18, 2021 at the latest, indicating "Registration - General discussion on GRIWAG"in the subject.
More information on this event is available here.
Wednesday, June 9, 2021
The following UN Human Rights Mechanisms have issued calls for inputs with deadlines in June and July 2021 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:
Special Rapporteur on the right to everyone to the enjoyment of the highest attainable standard of physical and mental health – Call for inputs on the right to sexual and reproductive health–challenges and possibilities during COVID-19. Deadline Jun 10, 2021. Read more.
Special Rapporteur on the human rights of migrants - Call for inputs on the impact of COVID-19 on the human rights of migrants. Deadline June 14, 2021. Read more.
Special Rapporteur on freedom of expression - Call for submissions on gender justice and the right to freedom of opinion and expression. Deadline June 14, 2021. Read more.
Independent Expert on the promotion of a democratic and equitable international order – Call for inputs on the extent to which the COVID-19 pandemic constitutes a serious test to multilateralism, laying bare its weaknesses and how it could be the opportunity for a strengthened, more effected and inclusive multilateralism. Deadline June 18, 2021. Read more.
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism – Call for inputs on the human rights dimensions of technical assistance and capacity building in the counter-terrorism and countering/preventing violent extremism areas. Deadline June 30, 2021. Read more.
Special Rapporteur on the rights to freedom of peaceful assembly and of association – Call for inputs on the protection of human rights in the context of peaceful protests during crisis situations. Deadline July 31, 2021. Read more.
This information was compiled by Khala Turner, rising 3L at St. Louis University School of Law, from https://ohchr.org/EN/Pages/calls-for-input.aspx.
Tuesday, June 8, 2021
By: Tamar Ezer, Acting Director & Lily Fontenot, Legal Intern
Human Rights Clinic, University of Miami School of Law
The COVID-19 pandemic has sharply emphasized the importance of a right to adequate housing. The U.N. Special Rapporteur on the right to adequate housing said it well: “Housing has become the frontline defense against the coronavirus. Home has rarely been more of a life-or-death situation.”
However, in the United States, instead of working to address the problem of homelessness, many of our municipalities have sought to make it invisible by criminalizing and fining activities people experiencing homelessness must engage in stay alive, such as sleeping, eating, or lying down. According to a 2019 survey of 187 cities, 55% have laws prohibiting sitting and or lying down in public; 72% have laws prohibiting camping in public places; and 60% laws prohibiting loitering, loafing, and vagrancy.
Thus, all too often we turn to law enforcement to handle social issues, further exacerbating them. Punishing homelessness is both ineffective and costly, as it merely shuffles people to different parts of the city and results in fines people cannot pay, jail time, and criminal records, perpetuating homelessness. Diverting resources to law enforcement can also cost two to three times more than it would to provide affordable housing. Moreover, criminalization has a disparate impact by race.
Punishing homelessness is also a human rights violation. Recently, the Human Rights Clinic at the University of Miami School of Law, National Homelessness Law Center (NHLC), and The Shift just filed an amicus brief in the Ninth Circuit in the case of Blake v. City of Grants Pass, arguing that punishing homelessness through the imposition of fines and fees for life-sustaining activities violates international human rights, including the right to be free from cruel, inhuman, and degrading treatment. In the case, the plaintiffs, who were all people experiencing street homelessness, received 615 tickets for either sleeping or camping in public, despite the city not having any homeless shelters or emergency beds.
The brief further argues that a human rights analysis should inform interpretation of the 8th Amendment’s prohibition of cruel and unusual punishment, which hinges on “evolving standards of decency.” The brief concludes by noting that the U.S.’s failure to recognize the right to adequate housing is at the root of punishment for homelessness. It is thus within the Court’s authority to order measures enabling access to housing, addressing the underlying cause of a violation that has persisted for years.
For additional information on the criminalization of poverty and fines and fees in the justice system, including a virtual interactive simulation, please see the Poor Not Guilty website developed by DePaul University and Nerd Lab, in collaboration with the Miami Law Human Rights Clinic, NHLC, and the Fines & Fees Justice Center.
Monday, June 7, 2021
On Thursday June 2, 2021, the United States submitted a periodic report to the Committee on the Elimination of Racial Discrimination. This is the first treaty report that the United States has submitted since 2016. The 2021 U.S. report to the Committee on the Elimination of Racial Discrimination states that it is responding to the Committee’s Request for the tenth, eleventh, and twelfth periodic reports of the United States under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination.
This blog welcomes your thoughts and analyses of the new report. Please contact Editor Lauren Bartlett if you would like to submit a post.
Wednesday, June 2, 2021
Just Security is publishing a series of articles starting this week which outline the origins and the scientific, legal, and ethical underpinnings of the newly released “Principles on Effective Interviewing for Investigations and Information Gathering,” also known as the “Méndez Principles.” These principles are an expert-led initiative responding to a 2016 appeal to the U.N. General Assembly by former U.N. Special Rapporteur Juan E. Méndez to develop such standards.
The Méndez Principles series on Just Security is being compiled here.
Tuesday, June 1, 2021
By Justine Dunlap, Co-Editor
From June 7 through June 11, the Department of Education’s Office of Civil Rights will conduct 40 hours of virtual public testimony aimed to improve the enforcement of Title IX of the Education Amendments of 1972. The public testimony spots are filled but individuals are encouraged to submit written testimony.
These hearings are being held in response to Executive Order 14021, issued March 11, 2021, in which President Biden ordered Secretary of Education Miguel Cardona to conduct a review of Title IX, including the much discussed and controversial regulations that went into effect last May.
Much about the new regulations deserve scrutiny and change. But they are not all bad. One beneficial component of the new regulations is the deletion of the term responsible employee and the concomitant de-emphasis on the widespread designation of nearly all university employees as mandatory reporters. Mandatory reporters are employees who must report when a student discloses an assault to them, even if the student opposes reporting.
As I detail in Harmful Reporting, 51 New Mexico Law Review 1 (2021), widespread mandatory reporting can be harmful to someone who wants to disclose sexual assault and receive help but who is against or even ambivalent about a formal report that removes the process from the student’s control. Sexual assault is, at its core, about the loss of control and healing involves regaining control. Thus, mandatory reporting—initially conceived as a positive step to address campus sexual assault--can depress disclosure and continue trauma to the discloser by removing her autonomy and control. Either of these results is contrary to the mandate of Title IX to provide equality in educational opportunity.
More information about the upcoming hearings, including how to attend or submit written comments, can be found at https://www.ed.gov/news/press-releases/department-educations-office-civil-rights-announces-virtual-public-hearing-gather-information-purpose-improving-enforcement-title-ix
Monday, May 31, 2021
By Margaret Drew, Co-editor
For anyone who thinks that anti-abortion advocates are not also promoting misogyny, ponder this. The Pennsylvania legislature is considering passage of a bill that would require women who miscarry to file the information with the state. "The Unborn Child Dignity Act " requires women who miscarry not only to report the miscarriage but requires health care facilities to offer burial or cremation as an option and could involve a miscarriage fine. The state would issue a death certificate for the miscarried fetus, as well.
Miscarriage is a traumatic event for women. While women have reported for generations the depression and other psychological concerns that can follow a miscarriage are serious. Occasionally a high-profile woman attempts to bring attention to concerns through public disclosure. Sometimes the media examines the devastating psychological impact of miscarriage. Some describe the after effects of miscarriage as including a form of PTSD which can last for months. Guilt is a common feeling experienced by miscarrying women.
Following this devasting trauma, Pennsylvania intends to treat the woman as having done something that deserves state intrusion and penalty.
The father has no responsibility to the state under this proposed law. The negative focus on women's bodily functions has ancient roots that are perpetuated here by members of the Pennsylvania legislature. Penalizing a woman's natural functions is hateful. There is the misogyny laid bare.
Thursday, May 27, 2021
Forced sterilizations and other non-consensual gynecological procedures performed on migrant women detained at Georgia’s Irwin County Detention Center
By Hugh Fitzgibbon, Som-Mai Nguyen, and Catalina Ramirez Palau, Law Student Representatives, Transnational Legal Clinic, University of Pennsylvania Carey Law School
On May 20, 2021, Secretary of Homeland Security Alejandro Mayorkas directed ICE to sever its contract with the Irwin County Detention Center (ICDC). This announcement followed a public whistleblower complaint filed September 14, 2020 against U.S. immigration authorities and ICDC detailing human rights violations committed against immigrant women held at ICDC, including nonconsensual hysterectomies performed by a government-contracted doctor. The complaint sent shockwaves through the media. 42 U.S. senators immediately called on the DHS Inspector General to investigate, and in January 2021, the UN Special Rapporteur on Migrants, together with 8 other human rights bodies, responded with a communication to the U.S. outlining their grave concerns. As of May 2021, all women at ICDC had been deported, released, or transferred, However, the government’s systemic failure to prevent abuse in its detention centers does not end with the closing of ICDC. While a hard-won victory resulting from years of organizing and advocacy, the post hoc termination of individual facilities cannot undo the harms inflicted upon these women — nor, as we know from history, will it stop the same from happening again. Nothing short of ending immigration detention will.
Based on the detailed account of a nurse employed at the center and the testimonies of several victims, the September 2020 complaint included credible and substantiated allegations of nonconsensual sterilizations and other invasive unnecessary gynecological procedures performed on women detained at ICDC, as well as general abuse and medical neglect.. At least 57 women treated by the same doctor between 2018 and 2020 underwent or were pressured to undergo unnecessary treatments without informed consent. The nurses allegedly communicated with non-English speaking patients by Googling translations, flagrantly undermining the women’s ability to give informed consent. “Everybody he sees has a hysterectomy – just about everybody,” the whistleblower claimed. A 29-year-old victim reported that she agreed to a dilation and curettage procedure to remove an ovarian cyst, but when she woke up from surgery, she discovered that one of her fallopian tubes had been removed — a procedure for which she never gave consent. Another woman reported undergoing a hysterectomy without being given the opportunity to decline or to consult with her family beforehand. One woman reported hearing from other detainees: “He just empties you all out.” These accounts are only several of many harrowing allegations from women held at ICDC.
These forced hysterectomies are not an aberration in the United States’ cruel history of sterilization abuse, both in detention settings and otherwise, and particularly as a means of racist, ableist, and socioeconomic oppression. In Buck v. Bell (1927), the Supreme Court upheld a Virginia law allowing the compulsory, eugenic sterilization of institutionalized people if the state determined it would benefit the “health of the patient and the welfare of society.” Infamy notwithstanding, Buck has not been overturned. Roe v. Wade (1973) cites it as an example of how the Court has not recognized an “unlimited right to do with one's body as one pleases.” In 2001, the Eighth Circuit cited Buck to argue that “involuntary sterilization is not always unconstitutional.” Legitimized, sterilization without consent continued and continues to be used to regulate reproductive freedom. Throughout the 1960s and 1970s, federally funded programs were used to coercively sterilize thousands of Black women by threatening termination of welfare benefits or denial of medical care; Indian Health Services sterilized at least 25% of Indigenous women between the ages of 15 and 44 without consent; and Los Angeles County U.S.C. Medical Center systematically performed tubal ligations on Spanish-speaking women without consent. The trial judge in Madrigal v. Qulligan (1978) wrote: “One can sympathize with [the women] for their inability to communicate clearly, but one can hardly blame the doctors for relying on these indicia of consent which appeared to be unequivocal on their face.”
Reproductive justice concerns not only barriers to abortion, but all aspects of economic, social, and political power relating to decisions about conceiving, delivering, and rearing children. Such justice is fundamentally incompatible with carcerality. As another example, many prison officials have used restraints on pregnant people. In Villegas v. Metropolitan Govt of Nashville (2013), Juana Villegas was arrested during a traffic stop when she was 9 months pregnant and held in custody for ICE after she was determined to be undocumented. When her water broke, she was taken in handcuffs and leg restraints to a hospital, where she delivered her baby while shackled to the birthing bed. The Sixth Circuit found “the right to be free from shackling during labor . . . not unqualified” because a woman in labor could nevertheless be a flight risk. Despite attempted changes in federal policy, as well as Georgia’s 2019 Dignity Act, which prohibits the shackling of pregnant people for six weeks after giving birth, the Southern Center for Human Rights reported in April 2021 that women at Lee Arrendale State Prison were shackled and/or placed in solitary confinement during their immediate postpartum period.
The reproductive injustice of non-consensual sterilizations and other unnecessary gynecological procedures performed on migrant women in ICE custody at ICDC is part of a much broader and deeper story of migrant dehumanization in the U.S. In immigration detention, people face medical mistreatment, poor sanitation, overcrowding, physical and psychological abuse, poor nutrition, and sexual violence – all laid bare by the COVID-19 pandemic. The system is designed to be punitive and to deter immigration, which is fundamentally antithetical to the protection of migrants’ health. Detention is part of the overly securitized response to immigration which facilitates the erosion of human rights, as are ICE’s co-optively named “Alternatives to Detention,” which expand surveillance but have not decreased the number of people in detention (unlike true, community-based alternatives to detention). This violative environment is compounded by the increased privatization of migrant detention in recent years: 81 percent of people detained in ICE custody are in private facilities. Privatization invariably compromises care due to profit-making motives, and the necessary desecuritization and deprivatization of the immigration system should be our takeaway from this case. The experiences of migrant women in ICDC further demonstrate why immigration detention must end. As a first step, the Biden administration’s plan to phase out the use of private prisons must extend to the immigration detention system.
Editors' Note: This post is cross-posted on the Reproductive Rights Prof Blog
Wednesday, May 26, 2021
In one of my last Zoom office hours session following this pandemic year of teaching, a Korean-American student in my contracts course signed off by giving me a warning wrapped in sincere advice—and it wasn’t about being safe from Covid during this part of the pandemic. “Professor,” she said after we were done discussing how to calculate expectation damages, “When you go outside this summer, will you please remember to carry some pepper spray with you?”
I had been expecting to wish her a safe and happy summer after her finals. Instead, she was reminding me to defend myself from an anti-Asian attack in public. The irony that this exchange came about during Asian American Pacific Islander Heritage Month doesn’t escape me. In a previous year, I suspect we might have been less pensive.
Last week—while again during the same AAPI Heritage Month—Congress and the White House cleared through the Covid-19 Hate Crimes Act. The Act was a direct response to the rise in anti-AAPI hate incidents in the last year. As President Biden signed the bill into law, he remarked: “My message to all of those who are hurting is: We see you and the Congress has said, we see you. And we are committed to stop the hatred and the bias.”
In substance, the Act itself reflects a lot of what has gotten us to this point over the last year. In its Findings section, Congress acknowledges the statistical increase in anti-AAPI hate crimes and violence perpetrated against AAPI individuals since the start of the last year’s pandemic. It also recognizes that one of the most vulnerable segments toward racial violence and bias has been the elderly members of the AAPI community—those who are the least able to socially and political integrate into American society because of immigrant status and language barriers. And by listing the incident itself and the names of all victims, the Act also recalls the recent Georgia shootings that resulted in the death of six women of Asian descent.
The Act doesn’t change the nature of identifying or prosecuting hate crimes. But in operation the Act tries to do several things. First, it sets up more resources for law enforcement, including the DOJ, for addressing reported incidents of hate. Secondly, it also funds educational programs for law enforcement to better recognize hate crimes and better systems for reporting hate crimes.
In essence, the Act tries to address two issues that AAPI organizations have highlighted with anti-Asian hate incidents in the last year—that such incidents are often underreported or never reported when they happen and also law enforcement agencies have a hard time classifying such incidents as hate crimes.
Is the Covid-19 Hate Crimes Act the proverbial pepper spray that AAPI individuals can now carry in their pockets to rely on against incidents of hate? Probably not. The Act embodies a lot of good, but it also has its limits. But those limits may reflect the constraints of law and our legal system, rather than the swift legislative actions of certain AAPI members of Congress. We can’t overstate what our laws can do. That will just make us bitter about the legislative process—and legisprudence—as a means of change. And in this last year, there’s already been a lot to be bitter about. So, I’d stress not to think that way.
Instead, I look at the Act optimistically because it is a moment for the AAPI community to be seen and heard. But I accept its limitations as well and use them as motivation to continue to be seen and heard—and much of being seen and heard in the wake of the Act’s signing cannot merely involve legislation alone.
We need to address the underlying ways AAPI individuals are perceived by American society—false narratives and stereotypes that have led so easily to the scapegoating of folks who look like my student and me during this pandemic. Otherwise, the end goals of efforts that got us the Covid-19 Hate Crimes Act will be short lived. Just as laws and norms go together, so do changes in law and norms as well. Progress on societal issues may seem hollow or short-lived if they happen by fiat without underlying shifts in norms and values that gird those societal issues originally.
Recently, on a Vox podcast featuring Olivia Laing on her new book on bodies and political autonomy, she laments that in terms of reproductive rights, the conversation that occurred around the right to abortion that surfaced in the last century seems to have continually resurfaced to stunt prior legal progress—or in my view, even threatening that progress given some developments at the Supreme Court and in Texas in the last few days. Some of this is likely attributed to existing misogyny and gender oppression that was never completely dealt with after Roe.
Similarly, when Jonathan Metzl writes about gun control, he has pointed out that despite legal efforts to curb gun violence, the underlying ideas about gun ownership—such as how ownership plays into and reifies a sense of racial identity and American masculinity—cannot be ignored when we address societal changes on that topic.
In his Prejudicial Appearances: The Logic of American Antidiscrimination Law, Professor Robert Post posits on a similar faithful overreliance on the judicial system to address inequality, stating that there’s a certain “logic” in post-World War II liberal thinking that “has led judges to craft legal rules as though antidiscrimination law could liberate individuals from the thrall of social ‘stereotypes,’ when in fact that law can intervene instead only to reshape the nature and content of social stereotypes.” As someone who writes about anti-stereotyping theory in law, I always read this passage to remind myself what else beyond law can be used to address stereotypes and normative values—because whether I agree with Post or not about law’s anti-stereotyping potential, he is right to point out that the law has limits when it comes to advancing justice and equality.
The Covid-19 Hate Crimes Act is a necessary step, but in order for individuals in the AAPI community to be seen and heard effectively—to not avoid being stereotyped—we also need our lived experiences to be actively and authentically reproduced, sincerely internalized by the American public, and finally understood with respect and dignity. Lived experiences matter for challenging existing norms that marginalize individuals and groups in this society. This sentiment is especially so when AAPI individuals have been marginalized in ways that flatten their diversity and humanity—as model minorities, perpetual foreigners, or white-adjacent and invisible people. Education ought not just be for law enforcement to better address or hear about hate crimes. Education must extend to the rest of the public to understand how AAPIs live, move, and are constrained within this society. One great example that I recently came across involves AAPI dance artists and choreographers who are trying to get major ballet companies to eliminate offensive representations in ballet productions. We need to be seen and heard beyond the Covid-19 Hate Crimes Act. I hope we claim this time and opportunity to do so.
So, to that end, I urge readers here to get to know or even get involved in AAPI organizations. I list two here:
- StopAAPI Hate: https://stopaapihate.org/
- AAAJ (Asian Americans Advancing Justice): https://www.advancingjustice-aajc.org/.
Or to become familiar with AAPI issues, visit resources or events available from the UCLA Asian American Studies Center: http://www.aasc.ucla.edu/events/default.aspx.
For summer reading lists, one recent non-fiction book on AAPI experiences that I’d recommend is Cathy Hong Park’s Minor Feelings (2020): http://www.cathyparkhong.com/. One recent work of fiction is Charles Yu’s Interior Chinatown (2020): https://www.charlesyuauthor.com/.
And lastly, one resource for all of us to become more empowered allies for each other is the free bystander training at Hollaback!: https://www.ihollaback.org/.
Let’s make sure that Asian American Pacific Islanders matter beyond the month of May. Pepper spray or not, let’s take care of ourselves and each other as we move back into public spaces and back into the world.
Tuesday, May 18, 2021
For those of you who may have missed the Washington Foreign Law Society, the American Society of International Law, and the ABA International Law Section's virtual event International Human Rights in the Supreme Court: 2021 Term on Wednesday, May 12th, 2021, a recording of the event is available on youtube here.
A panel of scholars and journalists (Lori Fisler Damrosch, Columbia Law, Thomas Lee, Fordham Law, and Robert Barnes, Washington Post) critiqued recent Supreme Court decisions, including a case defining the claims that may be brought under the Foreign Sovereign Immunities Act and the Alien Tort Statute involving human rights violations in foreign states. Also discussed were two decisions that will be issued soon in ATS cases brought against U.S. corporations alleging use of child slavery in cocoa plantations in the Ivory Coast.
Monday, May 17, 2021
George, Erika R. and Martin, Jena and Van Ho, Tara, Reckoning: A Dialogue About Racism, Antiracists, and Business & Human Rights (April 22, 2021). WVU College of Law Research Paper Forthcoming, Washington International Law Journal, Vol. 30 (2021). Abstract below.
Video of George Floyd’s death sparked global demonstrations and prompted individuals, communities and institutions to grapple with their own roles in embedding and perpetuating racist structures. The raison d’être of Business and Human Rights (BHR) is to tackle structural corporate impediments to the universal realization of human rights. Yet, racism, one of the most obvious of such barriers, has been a blind spot for BHR. While the field has contended with gender inequality, there have only been tokenistic nods to intersectional harms caused by business activities. The failure to address racism seriously undermines both the promise of BHR generally and specifically the recognized need to redress intersectional harms experienced by women from racialized backgrounds. In this article, three established BHR scholars enter into a dialogue on racism in BHR’s theory and practice. The article is not aimed at providing definitive answers, but instead at asking the questions necessary for understanding how BHR embeds, or may combat, racism. By engaging in a dialogic inquiry, the authors are able to highlight, examine, and analyze different approaches to these issues. The result is both an opening salvo on the intersection of critical race theory and BHR and an identifiable research agenda for future scholarship in the area.
The article proceeds in six substantive parts. Part I explains our choice of a dialogic methodology while Part II situates the inquiry in literature on structures of race and racism, critical race theory in law, and BHR. The dialogue begins in Part III with an interrogation of the terms “racist” and “antiracist” before Part IV contemplates whether BHR is racist, antiracist, or a tool that can be used to pursue either agenda. Because BHR is built on, and embedded with, capitalist theory, we examine capitalism’s racist foundations and question whether BHR can extricate itself from that origin. We then engage with the opposite end of the spectrum; what we call “Black Lives Marketing,” in Part V. Businesses may brand and market themselves as antiracist without ever undertaking the internal structural reforms necessary to be antiracist. We consider the demands BHR places on businesses to both adopt and to use their leverage to affect real change. The dialogue concludes in Part VI with reflections on the personal and professional impact of confronting racism within our fields of expertise. We conclude the article by noting that the dialogic methodology transformed the nature of the article, bringing a depth to our discussion that would not have been achieved otherwise.
Sunday, May 16, 2021
On May 18, 2021, from 2:30 – 4pm EST, join the Raoul Wallenberg Institute, Northeastern Law School’s Program on Human Rights and the Global Economy, and U. Minnesota’s Human Rights Center for a webinar on the intersections between poverty, human rights and inequality. The distinguished webinar panelists are: Gay McDougall, Domingo Lovera, Lucy Williams, and Gillian MacNaughton. Speaker bios are available here.
The panelists will address post-pandemic challenges drawing on their rich knowledge as well as their contributions to the newly published book, Research Handbook on Human Rights and Poverty, edited by Martha Davis, Morten Kjaerum and Amanda Lyons.
To register for this event, click here.
Wednesday, May 12, 2021
By Anna Arons, Guest Contributor, NYU School of Law
This year, my 1L students began law school the same week that police shot and paralyzed Jacob Blake. As they learned criminal law in the Fall, they also learned that a grand jury had failed to indict the police officers who killed Breonna Taylor. And this Spring, they began studying for their final exams just as Derek Chauvin was found guilty of murdering George Floyd and as police shot and killed 15-year-old Ma’Khia Bryant. They entered the legal profession the same year that millions took to the streets, demanding a reckoning with the racist hierarchies underpinning this country’s legal system – a reckoning that, for many, requires the abolition of the police and the criminal legal system as it exists now.
My students, like students around the country, grappled with what abolition might look like and what it might mean to be a lawyer working within a legal system reflects and entrenches existing racial, class, and gender hierarchies. Yet even as students struggled with these weighty questions, they remained largely unaddressed in the standard 1L curriculum.
This Spring, I attempted to address that gap by introducing a class on abolition into my Lawyering class. Lawyering is a required 1L course that teaches students the essentials of law practice through a series of simulations. Throughout the year, students learn professional skills, and they learn, too, to consider contextual dynamics and to be critical and reflective advocates. In our final unit, students must argue a motion to dismiss in a misdemeanor case where the charges stem from a verbal argument between two residents of a suburban town. This simulation opened the door to have a vibrant discussion of the meaning of abolition and how the same fact pattern might play out in the absence of the criminal legal system.
I aimed to design a 90-minute class that achieved several goals: first, to demystify the word “abolition” and allow students to work through possible versions of it; second, to provide factual and historical context to our current criminal legal system so that students could better understand arguments for or against abolitionist movements; and third, to validate and legitimize the discussions about abolition that students were already having outside the classroom. Above all, I aimed to present abolition as an exciting and accessible concept. Mindful of the perception of abolition as nebulous and overwhelming, I wanted to ground our discussions in specifics, rather than abstract principles. And, my personal views aside, I wanted to present abolition as but one possible approach and to acknowledge the tensions and complications of an abolitionist approach.
To prepare for class, I assigned my students materials that offered possible definitions of abolition and gave concrete examples of abolitionist projects. I asked them to read excerpts of Amna Akbar’s An Abolitionist Horizon for (Police) Reform, which lays out an abolitionist critique of policing, then describes community-based abolitionist projects. For more examples, students could listen to one of several podcast episodes centering on abolitionist movements around the country. Finally, I assigned an excerpt from Issa Kohler-Haussman’s Misdemeanorland, describing how misdemeanors are prosecuted and processed through New York courts. From this, I hoped students would gain a more thorough understanding of our starting point, and see that our misdemeanor-centered simulation was both realistic and higher stakes than it might appear.
In class, I used the familiar disorderly conduct fact pattern from our simulation as a pathway into a broader discussion. Before we began, I reminded my students of class expectations, encouraging them to extend grace to one another and to learn from one another. I reminded them, too, that I did not expect for us to land on any easy answers; rather, I expected that we might find ourselves in tension with our classmates and in tension internally and that sitting with and processing that discomfort is key to thoughtful and reflective lawyering.
With these expectations in place, we moved into a discussion, first in small groups and then as a whole class, in which I asked students to “re-imagine” what the interaction between the defendant and the complainant in our case might look like in a world in which police were not the tool of first resort. My students participated enthusiastically, brainstorming and working through alternate scenarios ranging from a restorative justice-oriented mediation to hand-to-hand combat. From there, we zoomed out: through a brief lecture, I traced the growth of policing and prosecution in New York, starting with the racist roots of modern policing and moving into the Broken Windows and stop-and-frisk era, before we transitioned to a class discussion centering on the goals of our current criminal legal system and how the current system achieves or does not achieve those goals. As class drew to a close, I offered several possible definitions of abolition, and students returned to small groups to reflect on how the alternatives they had brainstormed earlier fit with those definitions, as well as how their alternatives would achieve the goals of the criminal legal system.
My students participated openly and enthusiastically in this class, more so than any other class of the year. Though we devoted just one class to abolition, out of the hundreds of hours 1Ls spend in class, students expressed gratitude for the space to consider abolition within an academic setting. Some reported that it eased the cognitive dissonance they felt throughout the year between their discussions about the legal system outside the classroom and their discussions within it; others found it meaningful to discuss abolition rigorously and as a legitimate topic of study; and others, with less background in the area, appreciated building a more thorough understanding of what abolition might mean, beyond headlines and social media posts.
Our discussion also rippled through the remainder of our misdemeanor simulation, as students arguing for the defense raised policy arguments regarding the wisdom of using court resources on such a case, while students on the prosecution side not only prepared for those arguments but also considered whether this was a case they should be pursuing. Whether students identified as abolitionists or expressed more faith in our current criminal legal system, they told me that the class led them to take their misdemeanor case more seriously and to reflect on how it felt to be a lawyer –a prosecutor or a public defender – in the criminal legal system. All year, I’ve told my students that lawyering does not take place in the abstract: laws have real, concrete consequences that affect millions of people’s lives every day. Thus, to be effective, ethical lawyers, they must learn not just the rote mechanics of practice; they must learn, too, to sit with and process the political and social context and the consequences of their work. This class created an opening for students to practice those skills.
I do not claim that this single class resolved the question of abolition for any of my students, nor do I expect for it to resolve my students’ concerns about their roles as lawyers, but I offer up this experience in hopes that it helps other instructors bridge the divide between the oft-staid 1L curriculum and students’ – and this country’s – most pressing concerns.
Tuesday, May 11, 2021
The UCLA Law Review recently published a full issue on Transnational Legal Discourse on Race and Empire. All of the articles in that issue resulted from its January 2020 law review symposium featuring Third World Approaches to International Law scholars and Critical Race Theory scholars engaged in collaboration.
UCLA Law Review Volume 67, Issue 6 is available here. Wadie E. Said writes The Destabilizing Effect of Terrorism in the International Human Rights Regime, Adelle Blackett with Alice Duquesnoy write Slavery Is Not a Metaphor: U.S. Prison Labor and Racial Subordination Through the Lens of the ILO’s Abolition of Forced Labor Convention, and E. Tendayi Achiume, UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and professor of Law at UCLA, writes Race and Empire: Legal Theory Within, Through, and Across National Borders and Critical Race Theory Meets Third World Approaches to International Law. There's lots more and it is all worth a read.
Monday, May 10, 2021
Claudio Grossman, Pandemics and International Law: The Need for International Action, Human Rights Brief, Vol. 24, Iss. 3, Art. 2 (2021). Excerpt below.
"This Article argues that, due to the experience of COVID-19, it is important that the ILC of the United Nations considers the adoption of a normative instrument whose purpose would be the regulation of pandemics – before, during, and after they occur. There is a compelling need to act, stressing prevention and common reaction by the international community when these scourges occur, and the existing normative framework has shown its incapacity to organize the type of global mobilization that pandemics require. This Article will first provide a brief background into relevant topics, and then it will summarize key issues noted during the November 18 conference. Lastly, it will conclude by providing a recommendation for further action."
Sunday, May 9, 2021
Please Join the Zolberg Institute on Migration and Mobility at The New School, the Migration and Human Rights Program at Cornell Law School, and the Program on Forced Migration and Health at Columbia University's Mailman School of Public Health, for a symposium on May 18-20th, 2021, revisiting the 14 Principles of Protection for Migrants, Refugees and Other Displaced Persons.
This symposium marks the one year anniversary of the publication of the 14 Principles and will consist of a series of 45-minute sessions will explore how migrants, including refugees, have been particularly impacted by the pandemic and the new and emerging ways in which the human rights of these populations are likely to be challenged going forward.
Wednesday, May 5, 2021
The Human Rights Watch Film Festival, in its second digital edition, will be available to audiences across the U.S. from May 19 through 27, 2021, on its streaming site. Ten films are being presented on wide-ranging topics from the education of children with disabilities, a film following queer Black Lives Matter protesters in the U.S., to the continuing war in Colombia. Tickets may be purchased individually for each film for $9.oo or a $70.00 festival pass is available for all ten films that are part of the festival.
Human Rights Watch also states: "We do not want the cost of entry to be a barrier for participation in the festival. If the price of buying a ticket to this film would prevent you from participating, please email the following address (email@example.com) + you will receive an auto-reply email with a free ticket code. We have set aside a set # of tickets per film on a first come first-served basis. Once the free tickets are no longer available, the code will no longer work."
Tuesday, May 4, 2021
The following UN Human Rights Mechanisms have issued calls for inputs with deadlines in May 2021 and law professors whose research and scholarship touches on these topics may be interested in submission:
Special Rapporteur on the sale of children – Call for inputs on the gender dimensions of the sale and sexual exploitation of children and the importance of integrating a human rights-based and a non-binary approach to combating and eradicating sale and sexual exploitation of children. Deadline May 10, 2021. Read more.
Independent Expert on the effects of foreign debt – Call for inputs on international debt architecture and human rights. Deadline May 15, 2021. Read more.
Special Rapporteur on torture – Call for inputs to the Special Rapporteur’s report on “Accountability for Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”. Deadline May 15, 2021. Read more.
Special Rapporteur on independence of judges and lawyers – Call for inputs on gender equality in the judiciary. Deadline May 28, 2021. Read more.
Office of the High Commissioner on Human Rights – Call for inputs for a thematic report on “the right to privacy in the digital age”. Deadline May 28, 2021. Read more.
This information was compiled by Khala Turner, rising 3L at St. Louis University School of Law, from https://ohchr.org/EN/Pages/calls-for-input.aspx.