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.
Wednesday, August 4, 2021
By Co-Editor Margaret Drew
The National Law Journal announced the results of a poll indicating that most lawyers responding do not want Justice Breyer to retire. That prompted me to write on this topic that has been troubling me for some time. I was shocked when I first read of the retirement demands.
My first response was embarrassment, with more than a bit of annoyance. Justice Breyer has been a diligent and thoughtful member of the Supreme Court. He has devoted most of his life to public service. He is brilliant and engaged. A hallmark of Justice Breyer's service has been the dignity with which he performs his duties. Which of us has the standing to suggest that the time is right for Justice Breyer's judicial career to end. In terms of Supreme Court memory, Justice Breyer is one of the justices who can bring the perspective that comes with years of experience on the Court. He is also one of the few that brings a long history of engaging in civil debate with colleagues that leaves relationships intact. Justice Breyer maintains his dignity during an era of judicial opinions that disparage their fellow justices in harsh and sometimes personal terms. To suggest that anyone other than Justice Breyer has the right to make a retirement decision is arrogant. The retirement suggestion discounts Justice Breyer's autonomy and injures his dignity.
Exploring prior similar demands is a cautionary tale. Justice Rehnquist pressured Justice O'Conner to retire when legal watchers expected the Chief Justice to resign due to his poor health. Much to the chagrin of neo-liberals Justice Alito was Justice O'Conner's replacement. And Justice Rehnquist died two months after Justice O'Conner's retirement announcement. Calls for Justice Ginsberg's retirement presumed that a republican controlled senate would approve an Obama named successor. Speculative thinking given the Senate's treatment of Merrick Garland's nomination. Similarly calls for Justice Breyer's resignation ignore the political reality that members of the Senate might similarly block any nomination by President Biden. Without a super-win for Democrats in the upcoming mid-term elections, approval of the President's nominee is not assured. Forced decision-making often brings adverse consequences.
Both Justice Ginsberg and Justice Breyer resisted basing retirement decisions based on politics, appropriate for their positions.
Justice Breyer needs to be honored for his unquestionable loyalty and service to the bench and to our Constitution, as flawed as both may be. Human dignity must be preserved and our trust in this patriot should include respecting his decision-making.
Tuesday, August 3, 2021
by Co-Editor Margaret Drew
Stillwater, Matt Damon's latest movie, claims to be "loosely" based on Amanda Knox's "story". One reviewer noted:"The movie is loosely – very loosely – based – on the real-life, story of Amanda Knox, an American woman who since has been acquitted after she spent several years in an Italian prison when she was convicted of murdering her roommate." What's this about "since has been acquitted"? That phrase implies that since the movie was made there is an updated result. Ms. Knox was acquitted finally in 2015.
Ms. Knox was not the only one found guilty and then acquitted in the murder of Meredith Kercher. Raffale Sollecito, another roommate, was convicted and acquitted, as well. Yet who remembers the names of the co-defendant and the deceased? Amanda Knox was immediately tabloidized after the murder. She was a suspect, of course, by, a foreigner in Italy, and was subjected to all of the mental health accusations usually thrown at women without basis; she was sexualized and her account discounted. Women everywhere, particularly women defendants can identify with this treatment. Meanwhile not generally analyzed was the action of the police who failed to provide proper legal precautions and protections, and ignored the evidence that indicated that the sole perpetrator was Rudolf Guede, unknown to Knox, Mercher, or Sollecito.
The right to truth is much explored as a human right when the state causes harm. Unquestionably the Italian government and systems deeply harmed Ms. Knox and her family. Should those complicit in perpetuating the harm be held responsible, as well? This question can be explored in the context of those spreading Trump lies, particularly that he won the 2020 election. That harm began when Trump was president and part of the state.
We might consider expanding liability to those who perpetrate state harm through mistruths and ambiguities. Harm to reputation is difficult to undo, in part because the media is often unsupportive of truth when that truth is not scandalous or so noteworthy that it will draw viewers or readers. We are unwilling as a society to provide support to those whose reputations have unjustly suffered harm. Indeed, like the Stillwater writers, directors, and producers, should those perpetuating mistruths be responsible for human rights harms caused to others when the state originated the harm? The public has a right to the truth. The harm caused by Stop The Steal advocates, that compelled some individuals to act on lies initiated by the state, causes ongoing harm. Third-party non-state actors need to be held accountable when they are advancing or perpetuating harms caused by the state.
The reputational and privacy harm suffered by Ms. Knox is near-constant. US law deems her a public figure even though she did not seek the publicity that made her one. Consequently, she encounters a high standard in any defamation action. While Ms. Knox, a journalist, has not directly raised the human rights perspective on mitigating harm, she describes the ongoing harm she suffers in the Atlantic Magazine. Her narrative challenges us to consider whether this isn't the perfect time for us to consider expanding the conceptual liability for human rights abuses to those who knowingly extend harm originally caused by the state.
Monday, August 2, 2021
by Co-Editor Jonathan Todres and Joseph Wright
For young people, the digital environment is a modern-day playground or park. It is where they hang out, socialize, and learn. But ask any parent or policymaker about children and online environments, and chances are they mostly see health and safety risks.
Protecting children from online exploitation, privacy violations, and manipulative business practices is vital. However, focusing exclusively on protection isn’t enough to ensure the online world is a healthy, positive space for children. It’s like building a playground fixating only on safety, and abandoning any consideration of child development, the importance of play, and children’s social interactions.
Today, online spaces are a focal point of young people’s lives. Young children (8-12 years old) report almost 5 hours of screen time per day, while teenagers report more than 7 hours per day, not including school or homework time. And the COVID-19 pandemic has only added to that.
But as children live more of their lives online, it has become clear that the digital world, like most public spaces throughout history, was not designed specifically for kids. Research shows that the digital environment is adversely affecting children’s cognitive, social, and emotional development. These issues demand a response, but the goal cannot be just to avoid harm. Instead, we must affirmatively mold the digital environment into a space where children can develop and thrive.
Although social media and tech companies might feel too big to control, the digital environment is not a fixed space. It is continuously evolving, so we have the opportunity, and responsibility, to shape the online world into a healthier, more enriching space for young people.
To do so requires several steps. First, we must stop thinking of children as a homogenous group. The needs and capacities of a 15-year-old and 5-year-old differ. Failing to account for these differences infantilizes adolescents and spurs responses that fit poorly with children’s developmental stages. Our policies and strategies must reflect the diversity of childhood and be responsive to child development, just as many playgrounds have different equipment for different ages of children.
Second, we need to see children as individuals with rights and not merely charitable causes needing protection. Yes, children need protection from online exploitation. In fact, they have a right to protection. But seeing children as rights holders means much more than a claim to protection; it means ensuring all rights of children online, including the right to education, to enjoy their own culture, and to play. That also means policies must not deny children their rights in the name of protecting or “saving” them.
Protective measures are needed, especially for young children, but they must be combined with measures that empower young people to navigate online spaces safely and reap the benefits of the online world. Digital literacy education offers one means of achieving this. It’s analogous to teaching children how to develop healthy relationships and avoid toxic or unsafe situations, rather than simply prohibiting them from leaving the house.
Third, we must recognize young people as members of our community who have a right to be heard now, and not only at some ill-defined point in the future. The digital environment can be a space where children learn about their rights and civic duties, make their voices heard, and articulate a better vision for our world. What would have been isolated school strikes to protest climate change 15 years ago have become global movements because of organizing and activism online. While Greta Thunberg’s stand may be one of the most recognizable examples of young people leading, there are countless others. In the United States, young people have emerged as leading voices on gun violence, climate change, racial injustice, and other issues, and they have used social media to build movements and demand action by both policymakers and the private sector.
Embracing these ideas does not mean abandoning efforts to protect children. We must address online exploitation, cyberbullying, and racial and gender-based discrimination online. But we don’t need to settle for harm avoidance as the best we can do. After all, today we design safer parks and playgrounds, where the risk of injury is significantly reduced but young people are still free to express themselves and to explore, interact, and develop.
Ultimately, we need a better vision of what the digital environment can become. Young people are already showing us that. Policymakers and tech companies need to join child advocates and parents in partnering with young people to help reshape the digital environment into a space in which children are not only safe but can thrive.
Jonathan Todres is a Distinguished University Professor & Professor of Law at Georgia State University College of Law. Joseph Wright is a Ph.D. candidate in education and MPH student in community health sciences at the University of California, Los Angeles.
Sunday, August 1, 2021
By Co-Editor Prof. Justine Dunlap
Two extraordinarily inadequate investigations recently made the news—both involving the FBI and investigations of sexual assault allegations. In mid-July, the FBI Inspector General released its report on the multiple errors made by the FBI’s Indianapolis field office after it received allegations against Larry Nassar from U.S.A. Gymnastics.
Among the many shocking things in the report over which to be outraged, two stand out: First, had the field office done its job, perhaps 70—120 girls would not have been sexually abused. Second, the mendacious FBI agent responsible for this faux investigation was pursuing a job with the U.S. Olympics Committee whilst he was supposed to be pursuing the allegations against Nassar. Shameful. This man, W. Jay Abbot, has since retired. The Department of Justice should reconsider its decision to not prosecute him.
According to the New York Times, Rachel Denhollander, a Nassar survivor who pushed to get him investigated, said she was not surprised by the F.B.I. Inspector General report. “Botched investigations and cover-ups … are … what survivors are up against. … And they constantly get asked the question, ‘Why don’t [you] report?’ Indeed.
The FBI has also recently released a letter concerning its background investigation of then-Supreme Court nominee Brett Kavanaugh. The letter states that the FBI received over 4500 tips regarding Kavanaugh during his contentious confirmation process. It investigated ten and referred “relevant” others to the White House Legal Counsel office. Really?
It was certainly known at the time that the FBI was not conducting a real investigation. But the sheer volume of tips is incomprehensible. Can we be sure that there were unbalanced and off-the-wall tips? Absolutely. But all 4500? Not so much.
I absorbed these reports not as a survivor but through the eyes of one who has researched and written about the challenges of disclosing and reporting sexual assault and intimate partner violence. I stand in awe of Denhollander and Chrisine Blasey Ford and others like them who come forward in the face of heartbreaking and disgraceful investigative responses like these.