Tuesday, September 14, 2021
A couple of weeks ago Yale Law professor Samuel Moyn wrote a scathing and seemingly unfounded attack on the late Michael Ratner of the Center for Constitutional Rights in the New York Review of Books. I had considered posting about that piece here, but decided that it was too strange and awkward, personally blaming one man who had passed away five years earlier for the endless war on terror, to be worthy of additional attention.
However, Joseph Margulies and Baher Azmy’s response to Moyn in Just Security is more than worth a read. Margulies and Azmy, as practicing attorneys, litigators, present their point of view in light of their long careers and personal experiences working alongside Ratner.
In summing Moyn’s criticism of Michael Ratner, Margulies and Azmy state:
The idea is that by challenging detentions rather than the war itself…Ratner…validated the war on terror. And by smoothing down the roughest edges of the detention policy—providing detainees with a largely symbolic right of access to the courts, for instance—[he] gave a patina of legitimacy to what is at its core an illegal, immoral war, and in that way enabled our current quagmire of endless, boundless conflict.
Margulies and Azmy argue in response that “the idea that the detention litigation in general, or Rasul in particular, is somehow the reason the war on terror has become an endless, lawless monster is just silly” and also point out that “a person can obviously oppose war and torture at the same time, and Michael did both.”
They also point out that Moyn may also be “simply making the spectacularly banal point that litigation has unintended, and sometimes tragic consequences.” To that point, Margulies and Azmy respond:
But as our friend and Yale law professor Hope Metcalf says, “so what?” No experienced civil rights lawyer, and certainly not one as political as Michael Ratner, needs a law professor to explain that the courts are not a reliable friend of the weak. The insight that litigation by itself cannot achieve progressive change was old when Gerald Rosenberg put it in writing 30 years ago. And tying this observation to a larger political lesson—that power adapts to protect its interests—was old when Marx wrote it down nearly two centuries ago.
I think Margulies and Azmy also did a wonderful job of highlighting the best of what Michael Ratner did, which is what the best human rights advocates do best:
lending our voice to men whose voices had been silenced, and demanding that the law protect them when the state would not.
Sunday, September 12, 2021
Please join us in welcoming three new Co-Editors of the Human Rights at Home Blog:
Acting Director of the International Justice Clinic at the University of California, Irvine School of Law
Practitioner in Residence, Human Rights Clinic & Lecturer in Law at the University of Miami School of Law
Associate Director, Human Rights Clinic; Lecturer in Law; Faculty Director, Human Rights Program at the University of Miami School of Law
Wednesday, September 8, 2021
Law professor Andrea Armstrong at Loyola University New Orleans College of Law is profiled in the August 23, 2021, issue of the New Yorker. The article centers on her work to collecting and publicizing information about deaths of those incarcerated in detention facilities in Louisiana, but also covers her legal career, scholarship, advocacy, and even her personal life. It is an inspiring portrait of a law professor fighting for the protection of rights of the incarcerated in her home state.
Eyal Press, A Fight to Expose the Hidden Human Costs of Incarceration, The New Yorker, Aug. 23, 2021 Issue.
Tuesday, September 7, 2021
New Event: Connecting the Threads that Bind: Contextualizing Legalized Violence Against Asian Americans
On Friday September 10, 2021, from 11am-3pm PT, the UC Hastings Law Center for Racial and Economic Justice will host a virtual conference investigating systemic and historic causes of anti-AAPI violence, providing frameworks for understanding the continued subordination of AAPI and BIPOC communities, and discussing AAPI-led advocacy addressing the root causes of violence and disenfranchisement.
For more information and to register for this conference, please visit: https://www.uchastings.edu/event/connecting-the-threads-that-bind-contextualizing-legalized-violence-against-asian-americans/.
Monday, September 6, 2021
The following calls for inputs have been issued by the UN Human Rights Mechanisms with deadlines in September and October 2021 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:
High Commissioner for Human Rights – Call for inputs on report on Combating Intolerance Against Persons Based on Religion or Belief. Deadline September 23, 2021. Read more.
High Commissioner for Human Rights – Call for inputs on report on Good Practices and Challenges in Using the Guidelines on Participation. Deadline September 24, 2021. Read More.
Working Group on discrimination against women and girls – Call for inputs on report on various aspects of girls' and young women's participation and activism in the political and public life at different levels. Deadline October 1, 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.
Thursday, September 2, 2021
Human Rights and Hurricane Ida Part II
It has now been four days since Hurricane Ida made landfall in Louisiana and has since forged a path of destruction all the way up the East Coast to Maine. At this point almost one million electric customers in Louisiana remain without power, 30,000 in Mississippi and now over 100,000 customers in the Northeast are also without power. Schools in the New Orleans region are closed indefinitely and the Governor of Louisiana told those who had evacuated not to come home until officials say otherwise. Thousands of people were displaced by Hurricane Ida and it remains to be seen when and if they can come home.
On Monday, in Part I of my posts on Human Rights and Hurricane Ida, I discussed the U.N. Human Rights Committee’s recommendations regarding the human rights of internally displaced persons after Hurricane Katrina.
Today, I will focus on the U.N. Committee on the Elimination of all forms of Racial Discrimination’s recommendations regarding the disparate impacts on low-income African Americans displaced by and dealing with the aftermath of Hurricane Katrina. In its Concluding Observations (see paragraph 31) after its periodic review of the United States in 2008, the CERD Committee stated that the United States should:
- Increase efforts to facilitate right of return, where possible, or to guarantee access to adequate and affordable housing, where possible their place of habitual residence; and
- Ensure genuine consultation and participation of persons displaced by Hurricane Katrina in the design and implementation of all decisions affecting them.
The CERD Committee makes it clear here that human rights law requires U.S., state and local governments to increase efforts to facilitate the right of return low-income African Americans displaced by Hurricane Ida. Moreover, decision making regarding emergency housing assistance and recovery must include genuine consultation and participation by low-income African Americans displaced by Hurricane Ida. We need to and can do better in rebuilding this time around, and luckily we have clear guidance as to some of what went wrong in times past.
Monday, August 30, 2021
Yesterday, on August 29, 2021, Hurricane Ida made landfall in Louisiana sixteen years to the day after Hurricane Katrina hit the Gulf Coast. My heart is with Louisiana and Mississippi, and all of those dealing with loss and heartbreak in the aftermath of Hurricane Ida.
While it is too soon to know the extent of the destruction wrought by Ida, it is clear that many residents on the Gulf Coast will once again be displaced. In 2006, the U.N. Human Rights Committee addressed internal displacement and discrimination in the aftermath of Hurricanes Katrina and Rita and the levee failures of 2005. In its Concluding Observations (see paragraph 26) after its periodic review of the United States in 2006, the Human Rights Committee stated that the United States should:
- Ensure the full implementation of the obligation to protect life and prohibit discrimination, whether direct or indirect;
- Ensure the full implementation of the United Nations Guiding Principles on Internal Displacement; and
- Increase efforts to ensure that the rights of the poor, and in particular African Americans, are fully taken into consideration in the reconstruction plans with regard to access to housing, education and healthcare.
I hope that the U.S. Government, state governments, and local governments trying to figure out how to deal with the aftermath of Hurricane Ida will use these important human rights directives to guide reconstruction and to ensure the full implementation of human rights protections for all Gulf Coast residents, including internally replaced residents.
Sunday, August 29, 2021
New Article: “One of the greatest human tragedies of our time”: The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons
Lauren E. Bartlett, "One of the greatest human tragedies of our time": The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons, Mitchell Hamline Law Journal of Public Policy and Practice, forthcoming Fall 2021. Abstract below.
Children in cages, rampant sexual abuse, lack of access to life-saving medical treatment, and more. These human rights violations continue to occur in immigration prisons in the United States today, and given the scope, many, including the United Nations, are pushing the United States to abolish immigration prisons altogether. However, the Biden administration has demonstrated that is not interested in supporting the abolition of immigration prisons, not even in the international human rights arena.
After providing a brief overview of international human rights law prohibiting immigration prisons, this essay explores U.N. recommendations on immigration prisons from each of the Universal Periodic Reviews of the United States over the past ten years, as well as the U.S. responses to those recommendations. Through that exploration, it is made clear that while the Biden administration has showed an eagerness for reform in other areas, the administration missed an important opportunity this year to step up as a global leader and demonstrate commitment to the progressive realization of the full spectrum of human rights of migrants and set the United States on a path towards the abolition of immigration prisons.
Tuesday, August 24, 2021
Monday, August 23, 2021
The new podcast Entitled from the University of Chicago Podcast Network is a fantastic new resource for human rights at home law professors. Entitled is co-hosted by Professors Tom Ginsburg and Claudia Flores and explores current debates around rights through narrative storytelling and conversations with experts and advocates.
So far the podcasts have featured:
- Jamal Greene, author of How Rights Went Wrong: Why Our Obsession With Rights is Tearing America Apart.
- John Tasioulas, philosopher of ethics and human rights at Oxford University.
- David Kaye, Former Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
- Vietnamese pop star and free speech activist Mai Khoi.
- Nina Kerkebane, an Algerian asylee and an entering graduate student at the University of Chicago Harris School of Public Policy
- Ayelet Shachar, author of The Birthright Lottery: Citizenship and Global Inequality
- Maya Elzinga-Soumah, Senior Legal Associate with the UN High Commissioner for Refugees in Aruba and Curaçao.
- Itamar Mann, Director of the Global Legal Action Network and a Senior Lecturer at the University of Haifa Faculty of Law.
The first three episodes are on Apple podcasts now. To listen, click here.
Thursday, August 19, 2021
By Co-Editor Jonathan Todres & Adrianna Zhang
With the number of COVID-19 cases rising again, children in the US are facing the potential of a third straight school year being disrupted by the pandemic. Yet as policymakers and school administrators make decisions about reopening protocols, an essential group has been largely left out of the conversation: young people.
The U.S. prides itself on being a beacon of democracy. But 73 million constituents have little to no voice in our democracy. Politicians consistently overlook and marginalize individuals under 18 years old. Over the past year, policymakers have spent more time talking about and prioritizing reopening restaurants and bars than addressing the housing insecurity, educational disruptions, and mental health consequences of the pandemic that millions of children have experienced.
These are big issues to confront, requiring complex solutions. What is baffling is that in many areas, decision-makers are attempting to address school issues—or any issues affecting children—without ever talking to young people. Young people are not just part of some elusive future; they are ready to contribute to their communities now.
The government, at every level, must become more accessible to and inclusive of youth, especially those from historically underrepresented groups. Youth engagement will introduce new perspectives on current issues and help inspire solutions to persistent problems. As the new school-year is beginning, education is an obvious starting place for including young people’s voices.
Schools can start by surveying young people about challenges they face and any ideas they have for ensuring all students succeed. To be clear, listening to children should not replace communications with, and input from, parents and other caregivers—parents and caregivers are essential partners. But young people have insights that adults don’t, just as adults have perspectives that young people don’t. There is absolutely no downside to hearing from young people, unless we’re afraid of what they’ll tell us.
So, survey all students. Young people’s tech-savvy makes this easier than you might think. Better yet, schools should involve young people in the design of the survey, so they ensure that they ask the right questions and not just questions that serve adults’ interests. Then schools need to set up a process for ensuring ongoing dialogue with young people—all students, not just those they find easy to work with.
A partnership with young people cannot be limited just to individual schools. School district leaders can do better as well. School boards and superintendents should hold their meetings at accessible times so students do not have to miss class to ensure their voices are heard. They also should allocate a designated portion of public comment times to youth.
Other agencies with mandates that affect children—from health care, to transportation, to urban development—should follow suit. Just imagine, for example, what policymakers might learn if they heard from young people about their transportation needs. They would learn that many youth need better transportation systems not just to attend school but also to travel to work so they can help their families economically.
It’s not enough, however, just to open the doors to young people. Governments need to enhance efforts to teach young people how to effectively engage with agencies and make their voices heard. Schools are central to this, but every government agency can provide interactive guidance to young people so they can learn to present their ideas more effectively. Not only will this ensure agencies hear all good ideas, but civic engagement can lead to improved academic performance and enhanced social-emotional wellbeing for students.
Finally, we have to go beyond making existing spaces more open to youth. We need to create more avenues for young people to engage, from direct representation through local youth commissions to statewide ombudsperson offices for children. These exist in some places, but they need to be in all cities and states. At the federal level, young people have already urged President Biden to create an executive “Office of Young Americans” and appoint a “Director of Youth Engagement” who would sit on the Domestic Policy Council.
Partnering with young people will not only help confront pressing issues in schools and other settings, it will also help longer term by teaching young people the skills needed for effective participation in a democratic society, which ironically adults expect them to have the moment they turn 18.
There is no shortage of ways to involve young people. Doing so will help build a stronger democracy. Equally important, young people deserve to have a voice and feel valued in the community they grow up in and will live in for years to come.
The starting point is simple: We need to see, and treat, young people as genuine partners.
Jonathan Todres is a Distinguished University Professor and Professor of Law at Georgia State University in Atlanta. Adrianna Zhang is Founder and Executive Director of SF CHANGE and a high school senior in San Francisco.
Wednesday, August 18, 2021
The Washington Foreign Law Society (WFLS) will present an online free event on Tuesday August 24, 2021, from 5:30-6:30pm ET, discussing and critiquing the U.S. Supreme Court decision Nestle v Doe, which held that the Alien Tort Statute does not support claims against U.S. corporations based on child slavery in foreign lands. Thomas Lee and Mark B. Feldman will serve as discussants. From WFLS:
In recent years, judges and scholars have vigorously debated whether the Supreme Court was correct to state, in cases such as The Paquete Habana (1900), that customary international law is part of the law of the United States. Influential voices argue that Congressional action is required to create a cause of action under international law. That issue was of central concern to the Justices in Nestle, and will be debated by our panel. Registrants will receive a list of notable citations in advance of the program.
For more information and to register click here.
Tuesday, August 17, 2021
Alan Gutterman, Convention on Human Rights of Older Persons (June 29, 2021), available on SSRN. Abstract below.
Many have argued that it is appropriate to take into consideration the special circumstances of older persons when developing social and economic policies and there is a growing consensus regarding the need for explicit recognition of the specific rights of older persons in the form of an international convention or treaty that would raise the profile of the issues, serve as a basis for action in different contexts and empower advocates and members of that group to act. In addition, making certain rights explicitly applicable to older persons reduces the likelihood that they will be overlooked in the existing generic framework of human rights instruments that generally does not refer to age but relies solely on inferences that may be ignored or lack practical authority because they are difficult to apply to contexts that are different than those for which they were originally developed. Various arguments against and for a specific international convention or treaty for older persons have been made; however, the Covid-19 pandemic has created a new sense of urgency for such an instrument given the egregious violations of the human rights of such persons during the response to the emergency including discrimination, exclusion, marginalization, violence and abuse. Several roadmaps are available for negotiating and completing a new legally binding international instrument on the human rights of older persons including the UN Convention on the Rights of Persons with Disabilities, the Madrid International Plan of Action on Aging, the UN Principles for Older Persons and the Inter-American Convention on the Protection of the Human Rights of Older Persons and human rights advocates have grown frustrated with the pace of progress within the UN Open-Ended Working Group on Aging and urged States to stop talking and start writing in order to bring the project to fruition.
Monday, August 16, 2021
UN Special Rapporteurs Nils Melzer, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions, and Clement Nyaletsossi Voulé, Special Rapporteur on the rights to freedom of peaceful assembly and of association, as well as others, have expressed alarm at what they describe as a “rampant police brutality against peaceful protesters worldwide” and warned States of the grave danger arising from such abuse for human rights and the rule of law.
“In recent months and years, we have repeatedly voiced our concern over a steady increase in the use of excessive force, police brutality, and other forms of cruel, inhuman or degrading treatment, as well as arbitrary detention, against predominantly peaceful protesters in all regions of the world,” the experts said in a statement on August 13, 2021.
“This trend, often extending to journalists covering protests, has resulted in countless deaths and injuries, often exacerbated through torture, sexual violence, arbitrary detention, and enforced disappearance, and has intimidated, traumatized, and antagonised large segments of society worldwide.”
The experts said the vast majority of these incidents were rooted in political, socio-economic, ethnic, racial, religious, or other tensions specific to particular national or regional situations. “At the same time, there are also relevant, more generic contexts of global reach and underlying reasons of racism, gender-based and other forms of discrimination in law enforcement,” they said.
“Large-scale migration, protests of climate activists, human rights defenders, indigenous peoples and, more recently, the Black Lives Matter movement are affected by excessive use of force and police brutality.
“Additionally, since the outbreak of the COVID-19 pandemic, there have been numerous reports of security forces employing excessive and often indiscriminate violence resulting in unlawful deaths, injury and psychological trauma, as well as arbitrary detentions, in order to enforce emergency measures for the protection of public health, such asbans on assemblies, lockdowns and curfews.
“Most worryingly, throughout all regions and contexts, these acts of violence and abuse have often been encouraged by divisive, discriminatory and inflammatory narratives spread or condoned by political leaders, local authorities, and parts of the media, and by the resulting atmosphere of near complete impunity for perpetrators.”
The experts said it is the prime responsibility of governments and political leaders to prevent such dangerous developments through non-violent means including, most notably, pro-active communication aiming at de-escalation, reconciliation, and the peaceful exercise of civil and political rights.
“Public confidence in the reliability, legitimacy and integrity of State institutions and their law enforcement officials is the most valuable commodity of any peaceful, just and sustainable society and the very foundation of democracy and the rule of law,” the experts said.
“We therefore urge governments and political leaders not to needlessly squander the trust of their people, to refrain from any unwarranted violence, coercion and divisiveness, and to prioritize and promote dialogue, tolerance and diversity in the common public interest of all.”
Sunday, August 15, 2021
New Article: The Intellectual Property Turn in Global Health: From a Property to a Human Rights View of Health
Laura G. Pedraza-Fariña, The Intellectual Property Turn in Global Health: From a Property to a Human Rights View of Health, 36 Osiris 241 (2021), Northwestern Public Law Research Paper No. 21-20. Abstract below.
International intellectual property (IP) law for pharmaceuticals has fundamentally shifted in the twenty-first century from a property-centric to a human rights view. Scholars tend to explain this transformation in the context of both the power struggle between developing and developed countries, and the influence of a social movement that criticized IP rights as hindering access to essential medicines. Yet, these explanations leave out the central role of two international organizations, the World Trade Organization (WTO) and the World Health Organization (WHO), and particularly their permanent staffs, whose boundary disputes have shaped international IP law at the intersection of trade and global health. Bringing into conversation historical and legal literatures on global health and IP, this article traces how a human rights perspective on IP emerged as a strategy to reconcile the WHO staff’s sociomedical views of health with an increasingly dominant set of global IP rules. It shows how the WHO staff used the language of economics—an analytical frame favored by the WTO—to advance a then unorthodox economic understanding of IP as a type of governmental regulation. This allowed the WHO to argue that states should enjoy regulatory autonomy to curtail IP rights in order to meet broader state objectives, such as human rights protection. Paradoxically, despite their divergent views on the nature of IP, both WTO and WHO engagement with it heralded the emergence of a new technocratic view of global health that focuses on patentable medicines and technologies, and that has ultimately turned away from the WHO’s sociomedical roots.
Friday, August 13, 2021
By Co-Editor Margaret Drew
The discovery of children's bodies on the grounds of Canadian and U.S. "Indian Schools" is bringing the beginnings of a reckoning of the cruelty inflicted upon native people by both governments. U.S. history disguised the deliberate ripping apart of Native families as an attempt to assimilate the children. The Europeans made no attempt to honor the culture of Native peoples nor "assimilate" into established the established cultures of the Americas upon contact. As with other actions taken against Native peoples, this particular cruelty was another effort to eliminate Native peoples and their heritage. Those who survived the "boarding schools" were highly traumatized. The schools were more like prisons. Children were sexually, emotionally, and physically abused. They lived in filthy conditions and were forced to accept the religion of their captors. Many died because of the abusive conditions, others died during escape attempts. Both day and boarding schools were in existence until the 1960s. During that decade the child welfare system continued the policy of separating Native children from their parents, this time by placing Native children in white foster homes, Canadian Native people refer to this practice as The Sixties Scoop.
Secretary of the Interior Deborah Haaland ordered an investigation into U.S. Indian schools. In a Washington Post Op-Ed she wrote: “Though it is uncomfortable to learn that the country you love is capable of committing such acts, the first step to justice is acknowledging these painful truths and gaining a full understanding of their impacts so that we can unravel the threads of trauma and injustice that linger.” Recently the Presidents of the American and Canadian Bar Associations called for full funding of the investigation. A resolution endorsing the same overwhelmingly recently passed the ABA House of Delegates.
Tuesday, August 10, 2021
On Monday, the Intergovernmental Panel on Climate Change issued their report addressing the severity of climate change but and the irreversibility of the change. As reported in the Guardian, "This would be the sentence for these climate crimes, but it has yet to be passed down. The world can avoid the harshest punishment, but only just. Immediate repentance for the delays that have brought the world to the brink is required in the form of immediate and deep emissions cuts. The key aspect of the IPCC report is that the 42-page summary is agreed, line by line, by every government on the planet, with the scientists vetoing any politically convenient but unscientific proposal." The report states that the raging forest fires and floods experienced all over the world are a "foretaste".
A second report issued by the International Refugee Assistance Project (IRAP) anticipates actions our government can take to address the expected displacement caused by climate change and the world's refusal to take timely action. The authors make recommendations to the Biden Administration, including the following:
Issue a Department of Justice (DOJ) opinion that clarifies that climate change can serve as grounds for refugee status under U.S. law.
• Issue policy guidance for immigration officers and judges to guide them in properly assessing climate-related asylum and refugee claims.
• Train immigration officers and judges to recognize climate change’s relationship to persecution.
• Develop further research on climate change in the context of asylum and refugee law through the Research Unit at Refugee, Asylum, and International Operations.
Both reports are chilling but necessary reads. It is time to get real in addressing the impact of climate change on populations. In addition to considering inter-American migration, the US needs to consider internal displacement as fires, droughts, and other disasters make areas of the country undesirable or unlivable.
Monday, August 9, 2021
By Co-Editor Prof. Margaret Drew
News is out that Time's Up co-chair Attorney Roberta Kaplan assisted Gov. Andrew Cuomo and recently his resigned top aide Melinda DeRosa. Ms. Kaplan represented Ms. De Rosa during the inquiry into sexual harassment allegations by Mr. Cuomo led by the New York Attorney General. Further, the Attorney General's report noted that Ms. Kaplan had reviewed a letter drafted by Cuomo and/or Ms. DeRosa defending Mr. Cuomo and attacking Ms. Lindsay Boylan, who was the first to publicly complain about Mr. Cuomo's behavior. Ms. Kaplan reportedly approved the letter minus one claim. The role of Time's Up chief executive officer Tina Chen is less clear. While Ms. Tchen was named in the report, she adamantly denies participating in any effort to discredit a survivor of sexual abuse. Ms. Tchen said that she received a call from Ms. Kaplan about the letter being drafted by the Cuomo administration and Ms. Tchen informed Ms. Kaplan that no survivor should ever be discredited. Ms. Tchen has a career dedicated to protecting women and girls and she understands the power dynamics of sexual harassment in a way that Ms. Kaplan does not. An open letter was written by survivors to the Time's Up board requesting an investigation and one should happen. A timeline needs to be established answering the long-standing questions of who knew what and when did they know it. Without the inner exploration of how matters got to this point is definitely needed. This betrayal may come down to one woman whose loyalties were confused and whose attraction to power and celebrity outweighed her commitment to Time's Up's mission.
Ms. Kaplan has no defense for her betrayal. Is there a violation of ethics rules in this conflict of interest? That is for the licensing board to decide. But her action at a minimum evidenced bad judgment and a sense that Ms. Kaplan sussed out conflict. Was her call to Ms. Tchen to obtain the CEO's imprimatur? That itself infers her perception of conflict as well as a possible disclosure of confidential client information.
By all accounts, Ms. Kaplan is an amazing litigator. She is sophisticated and savvy. This is not a case of a misogynist manipulating her into defending an abuser. When Ms. Kaplan undertook the representation of Ms. DeRosa, certainly Ms. Kaplan was aware of the good optics of her representing someone allegedly involved in a cover-up of sexual harassment claims. Supporting a letter designed to discredit an accuser cannot be defended from a feminist perspective. Mr. Cuomo is known for his sizable ego and his lack of strong professional relationships in Albany. He was said to run his office with an iron hand. Wasn't Mr. Cuomo’s arrogance a hint that he might not respect women? Is there anything in this description that indicates the reporters are not credible? Therein lies the betrayal. Ms. Kaplan was willing to participate in the ancient tactic of discrediting the vulnerable rather than ensure that their claims were properly investigated. Ms. Kaplan can argue that her professional work is unrelated to her fiduciary commitments but that is false. Ms. Kaplan displayed not only Time's Up's policy of listening to survivors- but she also approved an activity designed to undermine both individual survivors and Time's Up's own policies. Let's hope that this dilemma provides an opportunity for Ms. Kaplan to consider what has become a compartmentalized identity for many lawyers: a seeming commitment to justice while not questioning scorched earth litigation tactics whose goal is to prevent a litigant from raising a claim. This could be an amazing time for Ms. Kaplan to reflect on her own values. Zealous representation does not require or encourage tactics designed to harm a litigant. Perhaps advocating the notion of zealous representation that simultaneously includes leaving the players' respect and dignity intact could be a calling for Ms. Kaplan.
Ms. Kaplan generously supported the creation of Time's Up but she failed in her fiduciary duty to the organization. Ms. Kaplan's commitment was important but apparently without an understanding of survivors' vulnerability. Attacking a survivor without substantial and credible evidence to do so betrays Time's Up's raison d'etre.
Ms. Kaplan needs to do two things. First, if Ms. Tchen's account is accurate, then Ms. Kaplan must speak out for her and clear up any misstatements in the NY Attorney General's report. Secondly, Ms. Kaplan must do whatever she can to repair Time's Up reputation. Ms. Kaplan brought this misery on herself, and it is most unfortunate that this important organization is suffering because of her acts. If moral persuasion is insufficient, practically the best way for Ms. Kaplan to help slow the damage to her own reputation is to show the courage and humility to publicly clear the organization unfairly implicated through her actions.
Sunday, August 8, 2021
Editor's Note: Prof. Jeremiah Ho. has a new article addressing Bostock v Clayton County, Georgia. Prof. Ho examines the limitations of the opinion, including the opinion's design to maintain the status quo for members of the LGBT+ community and those who benefit from the current social structure. The article, Queering Bostock, is to be published imminently in the American University Journal of Gender, Social Policy & the Law, Vol. 29, No. 3, 2021. Queering Bostock is available on SSRN.
Below is the abstract:
Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases that invigorate discrimination against queer individuals. In contrast, Bostock avoids any meaningful acknowledgment of the lives of the litigants or the experiences of anti-queer bias in exchange for a lengthy illumination of Justice Gorsuch’s textualist rationale.
When conceptions of sexuality and gender identity have been previously mischaracterized in favor of mainstream heteronormative values, the lived experiences of queerness are paramount for detecting discrimination and correcting it. This Article argues that Bostock’s neglect of queer lived experiences was not a forgivable oversight, merely collateral to its expansive textualist reading of Title VII. Rather, the neglect of lived experiences and anti-stereotyping frameworks was the price queer minorities had to pay for Title VII protection. In this way, this Article shows that Justice Gorsuch’s lack of regard for the lived experiences in Bostock tacitly privileges heteronormative values, underscores the status quo’s interest convergence, and ultimately limits the decision’s transformative appeal.
Thursday, August 5, 2021
By Co-Editor Prof. Justine Dunlap, who has been following sexual assault investigations
A 168-page report that is the result of interviews –179 of them. A report that is the result of a real investigation. That is what is New York Attorney General Letitia James released earlier this week. This report, the product of months of work, concluded that New York Governor Andrew Cuomo has sexual harassed 11 women. The report also stated that his office was a toxic workplace and that there was retaliation against at least one public accuser.
It is refreshing that the reports of sexual harassment by Cuomo were investigated. And they were investigated after Cuomo referred them to General James last spring when a raft of allegations made news. James took the referral seriously and conducted a real investigation. What a juxtaposition to the failure to investigate the sexual harassment and/or sexual abuse claims levied against Larry Nassar and Brett Kavanaugh as reported earlier this week.
Further, it is likely obvious to nearly all but Andrew Cuomo that he must resign. And if he doesn’t, he will be removed from office. He asked for this investigation and must live with the outcome. Cuomo’s digging in and excuses are not going to hold. He said in March—wait for the report. Well, the report is here—the result of a real investigation—and its conclusions are clear.