Law School Faculty Blog
9Sep/16

2nd Circuit dismisses $655M award against PLO

By

The 2nd U.S. Circuit Court of Appeals, on Aug. 31, ordered dismissal of a $655 million award against the Palestinian Liberation Organization. That judgment, in Sokolow v. Palestine Liberation Organization, is exemplary of recent retrenchment by United States federal courts on jurisdictional grounds in high profile international human rights litigation.

The extraterritorial reach of United States courts in such cases, at least since the holding of the 2nd Circuit in the Filártiga v. Peña-Irala case authored by same circuit in 1980, has often been considerably more aggressive. In Filártiga the court found jurisdiction for compensation for torture in Paraguay. It did so by resurrecting the Alien Tort Claims Act, a previously moribund statute dating from the Judiciary Act of 1789, granting jurisdiction "where an alien sues for a tort only, [committed] in violation of the law of nations." Despite that historically mysterious phraseology, Filártiga appeared to swing wide the doors for jurisdiction providing for compensatory recourse for activities of entities and individuals responsible for human rights abuses outside the United States. With the advent of terrorist activity as a global phenomenon, the U.S. Congress demonstrated a similarly aggressive extension of the extraterritorial reach of U.S. courts, passing anti-terrorism legislation that included explicit recourse for U.S. victims of terrorist violence abroad, the basis for the claims in Sokolow.

6Jul/16

Fisher Helps Promote U.S. Treaty Obligations

By

The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system.  This blog follows one covering the majority opinion.  That blog is available here.

The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, thePoverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network.  This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.

24Jun/16

Much Ado About Nothing

By

The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This second part affects about 25% of the students admitted to the University of Texas, where the majority of students are admitted through the State’s Top Ten Percent Law which requires that the top 10% of all applicants from each high school be admitted to the University. Justice Kennedy wrote the majority opinion and was joined by Justices Ginsburg, Breyer and Sotomayor. Justices Thomas, Alito and Roberts dissented, filing two separate opinions between them. Fisher v. University of Texas at Austin.

27May/16

Animus and Unequal Dignity: The Purpose and Effect of North Carolina’s New Anti-LGBT Law

By

On March 24, 2016, lesbian, gay, bisexual, and transgender (“LGBT”) North Carolina residents woke up to a new and hostile legal reality. Just one day prior, Republican lawmakers convened a special session—the first in thirty-five years—solely to consider a bill that permits (and perhaps encourages) discrimination because of sexual orientation and gender identity. Following only twelve hours of debate, the bill passed both General Assembly chambers with unanimous Republican support, and Republican Governor Pat McCrory signed House Bill 2 (“H.B.2”) into law that same night.

H.B.2 is breathtaking in scope. First, H.B.2 requires that all North Carolina multiple-occupancy public restrooms and changing facilities be segregated by biological sex. The law defines “biological sex” as “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” For transgender North Carolinians, changing sex on a birth certificate requires proof of sex reassignment surgery—a medical procedure that many trans people cannot afford or do not want. Under this law, individuals who identify and are perceived as women, for example, must use restrooms designated for men. Forcing individuals to use restrooms incongruent with their gender identity puts trans men, women, and children at daily risk for violence and arrest. Trans people thus have a choice: break the law and use the restroom that matches their gender identity, or follow the law and risk humiliation, harassment, and even death.

24Mar/16

In Deference to Majoritarian Oppression: Justice Scalia’s Indifference to LGBTQ Lives

By

On June 26 2015, in Obergefell v. Hodges, a five-member majority of the United States Supreme Court struck down state bans on same-sex marriage as unconstitutional. For the LGBTQ rights movement, this victory capped over two decades of civil rights advocacy that sought equal treatment for same-sex couples vis-à-vis different-sex couples.

Justice Scalia dissented in Obergefell, and he began with a confession: same-sex marriage, he wrote, “is not of immense personal importance to me.” With this, Scalia glibly distanced himself from an issue that is impossibly close for many. His stated disinterest reads as cold against a backdrop featuring countless activists who spent lifetimes seeking basic recognition of their relationships and identities. Scalia’s Obergefell dissent is just one opinion in a long line of many in which he opposed LGBTQ rights because of both his personal indifference and his belief that minorities are legitimately subject to the whims of the majority.

10Feb/16

The Clean Power Plan: Continuing Momentum after the Supreme Court’s Stay

By

The Supreme Court’s February 9 stay of the Obama Administration’s Clean Power Plan may have removed the states’ immediate compliance obligations, and it will undoubtedly remove some pressure for action in states resistant to change.  Nonetheless, the extensive data and fundamental state and regional planning processes generated by the Clean Power Plan (the Plan) may continue to bear fruit even as the Plan remains in legal limbo.

The Clean Power Plan has already triggered progress.  To determine feasible reductions on existing power plants, EPA spearheaded extensive analyses of regional capacities to shift to less-polluting natural gas and to develop renewables.  In addition, EPA gathered detailed information on the demographics around existing power plants to help states assess the environmental justice implications of their energy choices.  EPA’s research and the resulting data can provide essential information for state and federal policies regardless of the Plan’s status.

22Dec/15

The Paris Agreement and Theories of Justice

By

As we seek to understand and assess the Paris Agreement over the coming months and years, we will continue to contemplate the critical underlying political and ethical question: who should be responsible?  And to what degree should that responsibility take the form of direct action versus providing support in the form of financing, technology transfer, and capacity-building?  As my Center for Progressive Reform colleague Noah Sachs has observed, the principle of common but differentiated responsibility (CBDR) has been a consistent theme in all of the climate negotiations. But, what CBDR means—why and when responsibilities should be common, and why and when they should be differentiated—is continually contested and continually shifting.  I briefly highlight the allocation of responsibility in the Paris Agreement.  Drawing upon two recent articles on adaptation justice, I then provide a short roadmap to the theories of justice at play in the international negotiations, theories relevant to determining responsibility for both mitigation and adaptation.

30Nov/15

Don’t Let Fear Lead Us to Repeat the Mistakes of Guantanamo!

By

Within the past month, we have seen the Islamic State, also known as ISIS and ISIL, claim responsibility for blowing up a Soviet airliner in Egypt; killing 40+ people in Lebanon; and triggering the deadly attacks and killings in Paris, where at least 130 people died and 200 were injured. We have seen the threat of additional attacks cause the cancellation of a soccer match in Germany and, even more drastically, put Brussels on a three-day security lockdown. The U.S. Government recently issued a security alert amid increasing fears that ISIS will initiate a terrorist act here at home, in America.

13Oct/15

Celebrating CalECPA – The Best Privacy Law in the Country

By

Susan FreiwaldGovernor Brown signed the landmark California Electronic Communications Privacy Act (CalECPA) into law on October 8. CalECPA updates California privacy law for the digital world by requiring that California government entities obtain a probable cause warrant from a judge before they can access our emails, text messages, metadata (including information about our location and calling patterns) and other digital information from service providers like Google or directly from devices like our cell phones.

31Aug/15

The Clean Power Plan and Environmental Justice: Part Three

By

On Thursday and Friday of last week, I blogged about environmental justice and the Clean Power Plan. My first post considered how stringent targets and the right incentives could lead to significant aggregate reductions that will indirectly lead to reductions in co-pollutants that have a disproportionate impact on of-color and low-income communities. Friday, I examined the plan’s distributional effects and its provisions requiring community engagement. Today, I’ll examine provisions intended to help overburdened communities benefit from a transition to genuinely clean energy, and then I’ll draw some conclusions based on the issues discussed in all three blog posts.