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Showing papers in "Albany law review in 2003"


Journal Article
TL;DR: In this paper, the authors propose a new approach, through international law, towards finding a solution to domestic violence, which is referred to as "private torture" or "domestic violence".
Abstract: INTRODUCTION And yet I fear you, for you're fatal then When your eyes roll so. Why I should fear I know not, Since guiltiness I know not, but yet I feel I fear. (1) This is the fact. Every day, throughout the world, women are subjected to extreme acts of physical violence, which take place within the beguiling safety of domesticity. The violence is severe, painful, humiliating, and debilitating. And it is common. It is a phenomenon that stretches across borders, nationalities, cultures, and race. A binding characteristic of communities throughout the world, almost without exception, is the battering of women by men. (2) In this article I review the problem of domestic violence and propose a new approach, through international law, towards finding a solution. An emerging principle in international human rights law is that violence against women is a human rights violation. In the wake of this fledgling jurisprudence, it is possible to identify two specific manifestations of criminalized gender-based harm: namely, mass rape as a war crime or crime against humanity and female genital mutilation as a human rights violation. (3) These crimes jettisoned violence against women into the international legal discourse, paving the way for the criminalization of other forms of harm. (4) I propose that there is a third category of violence against women that should also receive international attention simply because it is one of the most basic and fundamental rights of women that is being violated. This is the right to be safe from extreme forms of domestic violence, or what I call private torture. Most States recognize the phenomenon of domestic violence. Many countries have taken social and structural steps to alleviate the distress experienced by women. However, legally, progress has been limited. While legislation may be enacted in a variety of countries to address domestic violence, the implementation of such legislation is peculiarly ineffective and the predominant mode of redress continues to emanate from sociologists, psychologists, and activists. (5) A real solution continues to elude the law, lawmakers, and legal practitioners. One of the main causes of the rift between the law against domestic violence and the implementation of such law, is the intimacy of the relationship between the aggressor and the abused. (6) However, an additional explanation for this schism is that the law cannot address something that has been inaccurately conceptualized. 'Domestic violence' is a term that applies to a miscellany of harm but by using a single, undifferentiated term of 'domestic violence,' current legislation fails to grasp the melange of harm produced by battering. (7) If domestic violence is properly defined to reflect the divergence of harm committed against women, it may become easier to identify effective, appropriate, and direct tools to minimize this phenomenon. Currently, falling within the one composite term of 'domestic violence' are acts as diverse as shoving, pushing, or verbal denigration ("category one") on the one hand, and battering, breaking bones, burning, raping, and torturing ("category two") on the other. While all these forms of harm do constitute intimate violence, there is an apparent distinction between them: intuitively we need to separate shoving-slapping-shouting from the more physically extreme battering-breaking-raping. This separation is not to attribute a lesser status to category one, but rather to carve out a more extreme physical form of violence so that each category has the appropriate mechanism to combat its occurrence. It is category two, extreme acts of domestic violence, which I seek to address as 'private torture.' It is this category of violence that, notwithstanding its extremity and widespread occurrence, continues rampant, literally throughout the world. And it is this category that I propose be addressed by international law as an international human rights violation. …

25 citations


Journal Article
TL;DR: In a recent study, this article found that nearly one man in ten identifies himself as gay or bisexual while the figure is less than three percent nationally, and that the gay presence in urban centers is far greater than in other parts of the country.
Abstract: The notion that one man in ten is gay may be a Kinsey-inspired myth, but it is not an urban myth. (1) Researchers have documented a striking concentration of gay men in the country's largest urban centers. (2) There, nearly one man in ten identifies himself as gay or bisexual while the figure is less than three percent nationally. (3) Although the concentration is less dramatic among lesbians, the gay presence in urban centers is far greater than in other parts of the country. (4) [FIGURE 1 OMITTED] This concentration is a result of several synergistic forces including a perpetual Great Migration that brings lesbians and gay men to places where more tolerant attitudes make for a better quality of life and where greater numbers allow for the development of vibrant gay-identified communities--not to mention increased chances of finding a mate. (5) At the same time, lesbians and gay men who grow up in these progressive destinations tend to live more open lives than those who grow up in less hospitable locales. (6) In short, tolerant communities induce both immigration by outsider gays and greater openness among native ones. From these dynamics have emerged gay havens, discrete places where a progressive climate and strong gay presence give lesbians and gay men an unparalleled opportunity to exercise a measure of social, economic, and political influence over the atmosphere of our communities and, hence, the conditions in which we live. Symbolized most notably by San Francisco and New York City, these havens are potential sites of meaningful gay liberation. For instance, fifteen states, the District of Columbia, (7) and more than 140 municipalities have prohibited private-sector employment discrimination on the basis of sexual orientation. (8) Not surprisingly, the list of municipalities includes most of the largest cities in the country along with smaller, traditionally progressive places, such as college towns. While these havens do not seem geographically imposing, they actually encompass more than forty percent of the country's population and jobs. (9) Orientation Discrimination in Private-Sector Employment. Significantly, these gay havens are not randomly distributed across the country. Gay-friendly states and municipalities tend to be clustered in the Northeast, upper Midwest, and far West, while the South, Great Plains, and Rocky Mountains remain relatively hostile regions. For instance, although a number of municipalities in such states as Washington, Illinois, and Pennsylvania have enacted gay civil rights laws, similar laws are nonexistent in places like Wyoming, Oklahoma, and South Carolina. Far from random, this distribution evinces a significant cultural and political divergence within the United States. This regional clustering of gay havens raises questions from a gay liberationist perspective about the soundness of conventionally progressive opposition to federalism and local control. The success of the gay rights movement in certain regions, and serious vulnerability at the national level, suggests that support for a strong central government and opposition to federalism or local control might be contrary to the cause. The Supreme Court's decisions in cases like United States v. Morrison (10) and Kimel v. Florida Board of Regents (11) contradict broad, conventionally progressive interpretations of Congress' power to regulate interstate commerce and enforce the Fourteenth Amendment, and they undoubtedly frustrate important progressive interests. Nevertheless, given the demographic and the political realities of lesbian and gay life, decisions like Morrison and Kimel may be progressive from a gay liberationist perspective. I. CONTEXTUALIZING PROGRESSIVE FEDERALISM There are progressives for whom the idea of federalism--or even states' rights--is not anathema. One need look no further than the overwhelmingly progressive citizenry of the District of Columbia, many of whom recognize the value in local autonomy precisely because they do not have it. …

16 citations


Journal Article
TL;DR: The legal framework of the mail-order bride trade in Canada and in the United States as well as the different scenarios that await the bride upon her arrival in North America are described in this paper.
Abstract: I. INTRODUCTION One's first impression upon visiting the mail-order bride ("MOB") web sites and reading the catalogues is of personal ads for singles in the age of globalization. (2) The growing solitude of adults who have gone through difficult relationships, separations, and divorces--coupled with the difficulty of meeting compatible, available people--leads many to turn to specialized introduction services in the hope of meeting a soulmate. Today this phenomenon has assumed global proportions. The global quest for romance has been made possible by the growing accessibility of information technology networks and international travel. In this theoretical scenario, the ultimate goal is an intercultural marriage, with the objective of enabling the woman to immigrate. While the first impression offered by international introduction agencies corresponds to the way the mail-order bride agencies and the First World husbands describe themselves, this first impression does not take into consideration the point of view of women. (3) Indeed, anti-feminist backlash is a recurring theme on the mail-order bride web sites. (4) A closer look at the mail-order bride practices of these introduction agencies--which I will also refer to as MOB practices--reveals multi-dimensional and interrelated inequities that place the bride in a position of dependence in relation to her First World husband. The true result of the MOB practice is a flourishing and lucrative industry involving the trafficking of women from the Third World to husbands in the First World. The mail-order bride trade feeds on highly unrealistic and contradictory expectations about marital relationships. The First World husband is typically looking for a docile, submissive, and subservient bride whom he can control and dominate. (5) He seeks a MOB specifically because of sexist sentiments, and his hatred and fear of the feminist movement. He rejects women of his own nationality as wives because he considers them to be aggressive and egotistical. He believes they are too ambitious, make excessive demands in marriage, and have expectations of equality with their husbands. He criticizes the desire of women for autonomy, independence, and equality. The bride, on the other hand, desires an American of the Hollywood star variety: a good, respectful, faithful, and loving husband and father. (6) The ideal type is white, tall, and has blue eyes. This trade is founded on the crudest of stereotypes, where the merchants of dreams--the MOB agencies--get rich not only at the expense of the First World husbands, but above all at the expense of the brides. In this paper, I will first briefly describe the legal framework of the MOB trade in Canada and in the United States as well as the different scenarios that await the bride upon her arrival in North America. Then, I will turn to the inequalities between countries and the sexism at the global level that leads to a flourishing MOB trade. I will conclude with a few recommendations. II. THE LEGAL FRAMEWORK OF THE MAIL-ORDER BRIDE TRADE A. The Law in Canada In Canadian law, there is no specific legislation governing the mail-order bride trade. Consequently, the various legal transactions involved in this phenomenon fall within several different areas of Canadian law--both private and public--and in both federal and provincial jurisdictions. The MOB trade raises issues relating to contract law, (7) immigration law, (8) marriage law, (9) criminal law, (10) and private international law, (11) among others. In short, the mail-order bride trade under Canadian law seems inextricably caught in a maze. In the context of this maze, immigration law plays by far the most important role. Until recently, women immigrated to Canada with a spousal visa when the marriage had been held in the bride's country or with a fiancee's visa when the marriage was to be held in Canada. (12) In both cases, the bride or spouse acquired permanent resident status upon arrival in Canada. …

14 citations


Journal Article
TL;DR: The South African Constitution of the Republic of South Africa as mentioned in this paper was the cornerstone of the women's movement in South Africa and was the first document to explicitly protect women's human rights.
Abstract: I. BACKGROUND In South Africa, the history of colonialism and apartheid rule has resulted in a significant overlap of race and poverty. Because poverty and inequality are so strongly gendered, the most disadvantaged and marginalized in our society are black women. (1) A substantial number of black women are further disadvantaged by their exposure to cultural and religious regimes that make the struggle for gender equality even more complex. Specifically, African customary law--which is essentially patriarchal in both character and form and has been interpreted in a way that allocates crucial benefits according to male primogeniture has had a particularly detrimental effect on the socio-economic power and well-being of rural women. (2) The effect of the HIV/AIDS pandemic on women is a reflection of the complexity created by the interface between poverty and inequality as it impacts women's daily lives. (3) Achieving effective gender equality is, therefore, the key to the eradication of disadvantages faced specifically by women. As soon as the political negotiation process for a new dispensation was on the table and the drafting of a new South African Constitution had begun, a strong and formidable women's movement ensured that gender equality was firmly placed on the agenda. (4) The resultant Constitution, itself a transformative document which is supreme and supercedes all law, outlaws discrimination based on a number of specific factors, including gender. (5) With this new document in place, the Constitutional Court of South Africa has been able to move South Africa closer to its goal of gender equality by ferreting out legislation that either directly or indirectly discriminates based on gender. II. RELEVANT PROVISIONS IN THE CONSTITUTION Enacted in 1996, the Constitution of the Republic of South Africa contains a Bill of Rights that is proclaimed a "cornerstone" of the new democracy. (6) The Bill of Rights is based on the three basic values of equality, freedom, and human dignity, (7) which run like a golden thread throughout. It guarantees protection of civil and political rights--the so-called first-generation rights--as well as economic rights--the so-called second-generation rights--and finally cultural rights--the so-called third-generation rights. The Bill of Rights not only protects individual rights, such as the right to human dignity, but also protects group rights, such as the right to practice one's culture together with members of one's cultural group. (8) The Constitution contains a separate external limitations clause, which applies to all the rights contained in the Bill of Rights. (9) In addition, an interpretation clause enjoins courts to infuse the "spirit, purport and objects of the Bill of Rights" with the values it espouses when interpreting legislation) (10) In interpreting the Bill of Rights itself, courts are further enjoined to proceed to international law and the jurisprudence of democratic societies, which are based on freedom, equality, and human dignity. (11) A. The Right to Equality The right to equality protected in Section 9 of the Constitution is a rather elaborate clause. It initially provides that "[e]veryone is equal before the law and has the right to equal protection and benefit of the law." (12) The section goes further, however, outlawing unfair discrimination--whether direct or indirect--based on a specific list of factors that include race, gender, sex, pregnancy, marital status, ethnic or social origin, sexual orientation, culture, belief, language, disability, and birth. (13) B. Other Constitutional Provisions In several ways the Constitution reflects a concern for the rights of women that goes beyond the equality clause itself. The Bill of Rights protects the right to freedom from all forms of violence--"from either public or private sources" (14)--clearly responding to the manner in which domestic violence manifests itself. …

11 citations


Journal Article
TL;DR: In this paper, critical race theory provides a principled alternative to stock liberal and conservative perspectives on the issues, which often lead to conflicting results in similar cases, and it can be seen as an alternative to the usual debates surrounding multiculturalism that pit individual rights against group grievances in a variety of contexts.
Abstract: The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery--often with seemingly contradictory results. Liberals typically favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy. I. INTRODUCTION: RACIAL PROFILING--LAW ENFORCEMENT, EDUCATION, AND IMMIGRATION A. Racial Profiling Pre and Post-9/11 In March of 2000, I wrote a short essay entitled Racial Profiling: "Driving While Mexican" and Affirmative Action for a talk I gave at the University of Michigan School of Law. The piece decried the lack of nuance in the arguments raised by both the right and left concerning the issue of racial profiling. (1) Little did I know that just a year and a half after that talk, the terrorist attacks of September 11, 2001 would breathe new life into the debate, only this time scrutinizing those of Arab and Muslim descent--especially non-U.S. citizens. (2) In the year since 9-11, I have thought quite a bit about two of the three panel topics for this year's symposium, racial profiling and immigration policy, (3) but I have paid little mind to the third, affirmative action. B. Critiquing Three Types of Racial Profiling Through the Lens of Critical Race Theory And so, today, I would like to discuss all three--the use of race in law enforcement, affirmative action in higher education, and the diversity lottery in immigration law--as aspects of a single, broader concept called racial profiling. This concept encompasses the issue of when race should be used as a factor in determining public policy. While we typically associate racial profiling with the narrow circumstance of motoring stops, racial profiling is behind public policy discourse on affirmative action and immigration policy as well. After examining the contours of racial profiling in each of these three areas, I assert that critical race theory provides a principled alternative to stock liberal and conservative perspectives on the issues, which often lead to conflicting results in similar cases. C. Laying the Foundation for the Critique: Defining Liberal and Conservative At the outset, setting forth working definitions of liberal and conservative (though admittedly simplistic) might be useful. By liberal, I refer to those who believe that individuals should be free to pursue their own happiness as long as they do no harm to others. Therefore, if one's activity adversely affects another, a liberal would permit government intervention to correct that harm. (4) While a conservative might agree with the goal of maximizing individual freedom, she would be loathe to assign that task to the government. Instead, her faith rests in laissez-faire approaches to wealth maximization and the pursuit of happiness, seeking government enforcement only to protect against clear attacks on that pursuit by criminal elements in society in turn. (5) With that, we are ready to examine profiling in law enforcement, university admissions, and immigration policy. (6) II. ACT ONE: RACIAL AND ETHNIC PROFILING IN LAW ENFORCEMENT Whether one favors the pejorative Driving While Black (or Brown) or Flying While Arab (or Muslim), the stock liberal argument against racial and ethnic profiling in the law enforcement context is that stereotypical assumptions--that people of color are more apt to commit crime--violate the liberal tenet that each person should be treated as an individual, not as a member of a group. (7) Every innocent individual of color that is stopped on the highway or frisked at the airport is stigmatized by society's suspicion attending a police search. …

10 citations


Journal Article
TL;DR: This paper argued that public presentational torture presents an important corrective to this argument by revealing that rational choice justifications are bound to torture's secrecy and highlighting the act's essential communicative logic.
Abstract: INTRODUCTION What we have seen has been terrible: burned corpses, women impaled and buried as if they were animals ready for the spit, all doubled up, and children massacred and carved up with machetes. The women too, murdered like Christ. (1) Torture is one of the most disturbing crimes imaginable. It is not only the harm of the act that defines it as reprehensible, but the logic of power that motivates its practice. Torture is bound to the intimacy of human beings' essential physical nature and the fact that the body--as the common ground of all humanity--can be made to evoke pain that exists beyond words. International human rights law defines torture as one of the worst crimes it is possible to commit and there exists a universal prohibition on its practice under all circumstances. (2) Following the tragic events of September 11th and the resulting "war on terrorism," the question of torture's legitimacy has been raised repeatedly in both scholarly writings and the popular press. (3) These considerations tend to focus on two interrelated issues, the factual question of whether torture is currently being used as a counter-terrorism strategy by the United States government and its allies, and the theoretical question of whether torture represents a justifiable policy in certain situations. (4) Alongside evidence that the world's dominant democratic state may be engaging in torture, there exists a growing number of scholars, as well as rising public opinion, supporting the legitimacy of the practice. (5) One of the most troubling aspects of the response to recent national security threats is the apparent ease with which core human rights principles--such as the universal prohibition on torture have been discarded by many who otherwise defend the value of essential rights. (6) Clearly these foundational concepts cannot be of great significance if they can be set aside when inconvenient to state interests. (7) In light of torture's universal prohibition and its status as a jus cogens crime, (8) affirming its legitimacy involves a critique of the value and efficacy of the human rights system. This essay begins with a testimony describing the open display of corpses bearing the physical marks of torture. Throughout the world, state agents leave mutilated corpses in places where they will be discovered, in town squares, hung from trees, and placed along roads and well-worn paths. (9) This phenomenon--which I term "public presentational torture"--is especially common during wars, internal armed conflicts, and states of emergency. What is compelling and disturbing about public presentational torture is not only the terrible quality of the suffering evoked, but the use of brutality to influence others. The shocking nature of these acts merits broad and unproblematic condemnation and appears to be precisely the sort of crime that deserves universal prohibition. This practice is of special significance because it draws attention to torture's communicative nature as social policy, (10) an element of the crime that is often ignored by those who defend its practice. (11) Those who support torture's legitimacy generally engage the issue through rational choice hypotheticals that balance the harm created by the act against the harm prevented by its judicious application, as seen in the commonly referenced "ticking bomb" scenario. (12) While the sensitivity and complexity of these arguments varies, they exhibit an understanding of torture as the extension of legitimate policy goals through the application of intense force. As such, debates regarding torture turn on its administration, mechanisms of limitation, authorization, and other issues that ensure the practice is tamed for use by a democratic state. (13) This essay argues that public presentational torture presents an important corrective to this argument by revealing that rational choice justifications are bound to torture's secrecy and by highlighting the act's essential communicative logic. …

8 citations


Journal Article
TL;DR: Torture has been widely practiced during the entire recorded history of humankind as mentioned in this paper and has been recognized as a peremptory crime by the International Criminal Court (ICC).
Abstract: Torture has been widely practiced during the entire recorded history of humankind For example: to obtain information about the enemy or enemy strategies in situations of armed conflict; (1) in criminal justice systems to invite a confession; (2) as a form of punishment; (3) or in a political society as a means of suppressing opposition (4) Torture was not considered illegal in some criminal justice systems '"The torture of a criminal during the course of his trial," wrote Cesare Beccaria, (5) "is a cruelty consecrated by custom in most nations" (6) He went on to explain: It is used with an intent either to make him confess his crime, or to explain some contradictions into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty (7) Aristotle, for example, listed tortures--alongside "laws, witnesses, contracts, [and] oaths"--as '"non-technical' means of persuasion" (ie, those besides rhetoric) (8) In elaborating on torture as a means of persuasion, he warned that "people under its compulsion lie just as often, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner" (9) Elsewhere, Aristotle discussed the proposition that "[e]vidence given under torture is more trustworthy than ordinary testimony but those who are under torture gain by telling the truth, for doing so will bring them the speediest relief from their sufferings" (10) He then argued that others may lie under torture to "escape the suffering of the moment" (11) Given these conflicting responses to torture, one must always evaluate evidence procured under torture for its plausibility or implausibility, reasoned Aristotle (12) In Roman law, it was customary for torture to be applied in order to uncover the commission of a crime (13) However, in The Digest, Justinian listed the opinions of numerous publicists on classical Roman law, including Ulpian, Modestinus, Papinian, and Paul, to illustrate that resort to torture in criminal cases was not unlimited (14) For example: '"[r]ecourse should only be had to the infliction of pain on slaves when the criminal is [already] suspect, and is brought so close to being proved [guilty] by other evidence that the confession of his slaves appears to be the only thing lacking'" (Ulpian); (15) "[a] person who has made a confession on his own account shall not be tortured in a capital case affecting others" (Modestinus); (16) "in a case of stuprum [(unchastity)], slaves are not [to be] tortured [to give evidence] against their master" (Papinian); (17) interrogations under torture were not to be requested in every case, but only if a capital or more serious crime could not be vindicated and investigated in any way other than by torturing slaves (Paul) (18) Under Roman influence, English common law also permitted torture as a means of eliciting a confession or for obtaining evidence from an uncooperative witness (19) Tasswell-Langmead, for example, recorded the case in 1615 of Edmund Peacham, Rector of St George church in Somersetshire who, suspected of seditious conspiracy, "was put to the rack and examined 'before torture, in torture, between torture, and after torture'" (20) However, times have changed and today torture is widely condemned (21) It has been described as "a cruel assault upon the defenseless" (22) and as "inherently abhorrent" (23) "[E]ven a murderer," decided Chief Judge Posner, "has a right to be free from torture" (24) Its proscription has indeed come to be recognized as a peremptory norm of general international law ("ius cogens") (25) This essay will seek to define the concept of torture as proclaimed in international law (Part I) and distinguish torture as a crime against humanity and as a war crime (Parts II A and B) …

7 citations


Journal Article
TL;DR: In this article, a citation analysis of state constitutional decisions was conducted, focusing on the portions of the majority opinions interpreting the scope of the protections afforded under the state constitutions, and support for horizontal federalism was found in over one-third of their decisions.
Abstract: INTRODUCTION Oftentimes a party will argue before a state supreme court (1) that the court should undertake an independent analysis of its state constitution and recognize broader civil liberties protections than provided under the analogous provision(s) of the Federal Constitution. The party may support its argument with decisions of other state supreme courts expanding rights under their state constitutions. In opposition, the court may be presented with decisions of still other state courts interpreting their state constitutions consistent with United States Supreme Court interpretation of the Federal Constitution. While there are other sources of authority to which the court may turn to resolve state constitutional questions, including its own previous decisions, state constitutional language, and state constitutional history, (2) the court may ultimately look to out-of-state decisions for guidance. (3) This is an example of what Professor Alan Tarr identifies as state court interpretation of state constitutions within a "universe of constitutions." (4) Although the United States Supreme Court generally has chosen not to look to state court interpretation of state provisions when interpreting the Federal Constitution, state supreme courts oftentimes have looked within this pool of cases when interpreting their constitutions. (5) Indeed, New Jersey Supreme Court Justice Stewart G. Pollock urged state courts in a 1985 article to engage in this "horizontal federalism" and communicate decisions affecting fundamental rights for other state courts to consider when interpreting their state protections. (6) The body of scholarship--much of it generated by political scientists--seeking to explain why a state supreme court chooses to expand rights under the state constitution has not, to date, addressed the influence of decisions rendered by other state supreme courts. While scholars cannot read the minds of the justices to determine how sister-state pronouncements may have impacted the resolution of their state constitutional issues, the judicial opinions generated in these cases do serve as written accounts of their decisions, and within these opinions, justices will usually include citations to other cases both from the same court and, oftentimes, from other courts. (7) These citations may provide some insight into the extent to which state courts communicate with each other over the meaning of state constitutional provisions and engage in horizontal federalism. This study investigates the level of horizontal federalism in state civil liberties interpretation through a citation analysis of state constitutional decisions. Focusing solely on the portions of the majority opinions interpreting the scope of the protections afforded under the state constitutions, support for horizontal federalism is found, as the courts included in the study cited decisions from other state courts in over one-third of their decisions. (8) The level of citation to other state court decisions was higher in those decisions in which the state court afforded citizens broader rights under the state constitution than provided under analogous provisions of the Federal Constitution. These results provide initial empirical support for horizontal federalism, but, as more fully discussed below, it may be that future levels of out-of-state citation will fall, as states increasingly build up their own precedent from which state constitutional decisions may be constructed. Part I of this article briefly addresses how existing empirical studies of decision-making under the new judicial federalism have failed to incorporate the influence of horizontal federalism, and how a citation pattern study can provide some preliminary evidence of inter-court communication to be considered in future investigations. (9) Part II of this article sets out the methodology used to collect and analyze the data to study citation patterns, (10) and the results are presented in Part III. …

7 citations


Journal Article
TL;DR: Engendering Development: Through Gender Equality in Rights, Resources, and Voice by the World Bank as discussed by the authors is the most comprehensive attempt by the Bank to explore and resolve the relationship between two goals that have often been in tension, gender equality and the pursuit of economic growth.
Abstract: INTRODUCTION In a recent policy research report, Engendering Development: Through Gender Equality in Rights, Resources, and Voice, (1) the World Bank lays out a new "market-centered" approach to gender equality. Engendering Development is important for at least two reasons. First, it represents the most ambitious and comprehensive attempt by the Bank to date to explore and resolve the relationship between two goals that have often been in tension, gender equality and the pursuit of economic growth. Second, it represents a significant departure from established international norms and strategies surrounding gender equality. Engendering Development is a project that faces in two directions. On the one hand, it makes a "gender" intervention in debates over market reform and development: it seeks to persuade those who may have no independent interest in gender equality that it is important to the objective of economic growth, and it makes the case for attention to gender equality in market-centered reform agendas. On the other hand, it represents a "market" intervention in the international debates over gender equality: it seeks to inject those debates with a new consciousness of imperatives of efficiency and to reframe both the analysis of gender equality and the strategies used to promote it in market-friendly ways. This paper describes in broad contours the vision of gender equality in Engendering Development and profiles the ways in which that vision diverges from the mainstream gender equality project on the international plane. It traces some of the connections between the arguments in Engendering Development and the larger institutional and governance projects in which the Bank is immersed. And it suggests why Engendering Development represents both a cultural intervention and a cultural project of its own. Engendering Development simultaneously challenges the mainstream international gender equality paradigm, incorporates some of its arguments and strategies, and reflects back its blind spots and omissions. Engendering Development is fascinating and important in its own right. But because it reveals elements of the mainstream paradigm that otherwise tend to be less visible--among them its connection to institutional and regulatory regimes that are now being seriously questioned--it is useful as a basis upon which to think about what is the same and what is different in the way we now pursue gender equality. I. LOCATING ENGENDERING DEVELOPMENT At first glance, Engendering Development looks like a victory for gender equality activists and scholars. Even if motivated by the conclusion that it is instrumentally important to development too, the attempt to integrate gender equality into the development agenda is at least partly a response to the gender critiques leveled against the development agenda organized around the "Washington consensus." (2) If nothing else, Engendering Development confirms that it has become difficult to simply ignore calls for attention to gender equality: gender equality is sufficiently entrenched as an international norm--if not necessarily at the level of institutions and practice--that to oppose it is to risk delegitimation. Yet Engendering Development is a curious account of gender equality. To begin, Engendering Development represents no simple adoption or incorporation of the existing gender equality agenda at international law. It is new at the level of vision and institutional practice, and it challenges at a fundamental level visions of gender equality rooted in the use of the state to ensure a broad array of women's rights. It is difficult, if not impossible, to make sense of Engendering Development without placing it within the larger transformations in the realm of governance now underway. (3) Engendering Development is very much a project of its time. It bears many of the hallmarks of the dominant "third way" regulatory and policy proposals of the globalized era. …

7 citations



Journal Article
TL;DR: The Rehnquist Court has been widely criticized for creating a "federalism revolution" as mentioned in this paper and has been used as the basis for invalidating numerous federal laws, such as the Voting Rights Act (VRA).
Abstract: The Rehnquist Court has been credited with, or accused of--depending upon one's perspectivc--creating a "federalism revolution." Undoubtedly, the Rehnquist Court has dusted off seemingly long-forgotten federalism provisions in the Constitution and used them as the basis for invalidating numerous federal laws. This court has found limits to congressional power under the Interstate Commerce Clause of Article I (e.g., United States v. Lopez (1) and United States v. Morrison (2)), prohibited the federal government from commandeering states and reinvigorated the idea of state sovereignty under Tenth Amendment (e.g., New York v. United States, (3) Printz v. United States, (4) Mack v. United States, (5) and Alden v. Maine (6)), limited Congress's "remedial" authority under Section 5 of the Fourteenth Amendment (e.g., City of Boerne v. Flores, (7) Kimel v. Florida Board of Regents, (8) and Board of Trustees of the University of Alabama v. Garrett (9)), and advanced a broad theory of state immunity from civil lawsuits under the Eleventh Amendment (e.g., Seminole Tribe of Florida v. Florida, (10) Alden v. Maine, (11) College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, (12) Kimel v. Florida Board of Regents, (13) and Board of Trustees of the University of Alabama v. Garretp (14)). These lines of cases have provoked a good deal of commentary on and off the Court. As Linda Greenhouse observed in the New York Times, "[n]ot since the Supreme Court's resistance to the New Deal crumpled in the late 1930's has the court been so hostile to the exercise of federal power." (15) Of course, the federalism coin is two-sided. On the one side, a bust of federal power protrudes, while on the other, the contours of state power are etched. Nonetheless, the two sides are not independent of one another, and in order to understand the meaning of the Court's federalism jurisprudence for states, it is essential to get a grasp on the impact of the Court's decisions on the national government--especially in Congress. Thus, understanding the meaning of the Court's federalism decisions for states requires a proper understanding of the relationship and interconnections among the Court's constitutional interpretations, congressional decision-making, and the role of states in the national lawmaking process. The first section of this essay briefly explores the target of the Rehnquist Court's federalism jurisprudence and argues that the main thrust of the Court's federalism doctrine has been to limit federal legislative powers, as opposed to building up state powers. However, the effectiveness of the Court's attempts to limit federal powers remains uncertain. The second section then explores the meaning of the Court's actions for states and contends that the Court's decisions are not unilaterally bolstering state powers, but that the Court's jurisprudence may provide state and local governments leverage against the federal government if they assert themselves appropriately. The final section examines the limitations of the leading theoretical explanations of the Rehnquist Court's federalism decisions, most prominently manifested in the legal academy by the political safeguards versus judicial safeguards debate. I. FEDERALISM, THE REHNQUIST COURT, AND CONGRESS Although many commentators have discussed both sides of the federalism coin, for the most part, the Rehnquist Court appears to be more focused on limiting congressional powers than on bolstering state powers, suggesting to some that the Court is really engaged in a separation-of-powers battle. In the Washington Post, for example, Suzanna Sherry asserted that "not since the New Deal has the Supreme Court so consistently set itself, and the Constitution, against Congress." (16) After the Court handed down its decision in Board of Trustees of the University of Alabama v. Garrett, (17) Linda Greenhouse wrote an article in the New York Times entitled simply: The High Court's Target: Congress. …

Journal Article
TL;DR: Reyhan and Gathii as mentioned in this paper discussed the relationship between law and culture in three general parts: the first part consists of a brief review of the theories addressing the relationship and culture, mainly the mirror theory, the second part reviews the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), a law that seeks to effect change by mandating equality for women in part by identifying and attempting to change what are perceived as deleterious cultural practices.
Abstract: Good afternoon. It is a pleasure and honor to be here today. I want to thank Professors Patricia Reyhan and James Gathii for their kind invitation to participate in this most exciting conference. Thank you also to Dean Thomas Guernsey, without whose support these exciting and challenging encounters could not take place. It is always a special pleasure, though a nerve-wracking experience, for me to return to my alma mater and be part of these intellectual conversations, particularly in this room where I suffered through courses like Trusts and Estates. Needless to say, even almost twenty-five years after graduating, I still get a peculiar feeling when reciting facts and law to former professors such as Kathy Katz, and to new friends and colleagues such as Nancy Ota, Peter Halewood, and Donna Young. I hope I am not misunderstood when I say the faculty today looks dramatically different from back in my day. Not that the faculty wasn't wonderful back in my day. We too had change. For example, Kathy Katz was the second woman hired by this faculty. For those of you who heard last night's tribute to her, I can tell you that as a first year student in her first contracts class here at Albany Law School, she indeed was a teacher, scholar, activist, and mentor. I remember the activist part quite clearly. On the day we learned that the Equal Rights Amendment was defeated because not enough states had ratified it, she walked into class wearing a black arm band and started the class with a moment of silence. Let me tell you, as contracts students we might not have understood the concept of consideration, but I assure you, we understood that. My comment about how this faculty looks different from back in my day is actually a very good, positive comment. Change, in fact, is precisely my focus today. This talk, titled "Glocalizing Law and Culture: Towards a Cross-Constitutive Paradigm," interrogates what factors determine whether law that effects cultural change is embraced or rejected by a culture. In this regard, I must note at the outset what I call the glocal nature of culture: it can be both local--as reflected in particular native geographies--and global--as reflected in diaspora communities. This lecture addresses the relationship between law and culture in three general parts. The first part consists of a brief review of the theories addressing the relationship of law and culture, mainly the mirror theory. But I will suggest that there is more to the relationship of law and culture than one being an inert reflection of the other; hence my proposal for what I call, as a working concept, a cross-constitutive paradigm of law and culture. The second part reviews the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), (1) a law that seeks to effect change by mandating equality for women in part by identifying and attempting to change what are perceived as deleterious cultural practices. As such, CEDAW has been both successful and unsuccessful: in some instances, at least on paper, CEDAW has changed culture; in other cases, it has failed to do so. Third, I will look at Cuba as a particular location in which to explore the relationship between legal change and cultural change. Specifically, I will compare two laws in the context of Cubans in exile and Cubans on the island. This analysis allows me to suggest some factors that may provide insight as to whether or not law will be effective in changing culture. It probably need not be underscored here that, by talking about Cuba, a socialist state, I am intentionally toying with the notion of markets which, in globalization terms, are synonymous with capitalism and the so-called "free markets." THEORIES OF CULTURE Before presenting theories of culture, it is important to define what I mean by culture. Interestingly, many who write about culture do not bother to explain their understanding of--or the meaning they ascribe to--the term. …

Journal Article
TL;DR: In this paper, the authors compare judicial review by state supreme court decisions relative to that of federal court decisions and find that state supreme courts are the courts of last resort in most cases and their collective caseloads easily dwarf that of the federal courts.
Abstract: By expanding the doctrine of state sovereign immunity, the United States Supreme Court has made it increasingly difficult for litigants to bring suit against state institutions as a matter of federal law in federal court. (1) Nevertheless, the option to pursue analogous claims as a matter of state statutory or state constitutional law has been expanded as a result of the heralded renaissance in state constitutional law--the so-called new judicial federalism. (2) In this perspective, we will use the domain of regulatory policy to compare the seeming absence of analysis of state high court (3) decisions relative to that of federal court decisions. Judicial review has been justified as--among other things--necessary to maintain a separation of powers, as a way to prevent arbitrariness in the law, and as a method to offset the pressure exerted by political interest groups. (4) The debate surrounding judicial involvement in regulatory policy has been accompanied by decades of widespread litigation and several controversial Supreme Court opinions aimed at limiting the judicial review of agencies. (5) To shed light on this debate in the context of state courts, we will compare judicial review by state supreme courts to that of federal courts. While research has consistently found that regulatory agencies are remarkably successful litigants before the Supreme Court, (6) scholars have not generated nearly as much research at the state level. The last decade, however, has produced several path-breaking studies of the policymaking role of state supreme courts. (7) Such research is considered overdue, since state high courts are the courts of last resort in most cases and their collective caseloads easily dwarf that of the Supreme Court. (8) Furthermore, like the federal appellate courts, state supreme courts create important rules of legal procedure that guide the administration of law for the lower courts handling the bulk of litigation in the United States. (9) There have been a few studies charting judicial activism in state courts. In the early 1980s, for example, state supreme courts overturned twenty-three percent of the economic regulation cases heard. (10) In contrast, while the issue of civil liberties comprised only eight percent of the cases that were appealed to them, the legislation was overturned in thirty-four percent of the cases. (11) More recent research concludes that agenda decisions and merit votes of state supreme court justices are strategic depending on the salience of the issue and the independence afforded by the state judicial system. (12) The scholars that have focused on the institutional and political differences among state supreme courts as a way to explain differences in decisions note that courts in industrialized, politically competitive states handle a larger number of regulatory cases. (13) Some of the most sophisticated research of the last decade has focused on determining the effect that judicial selection mechanisms and the institutional arrangements has had on decisions. (14) As recent years have brought about a new judicial federalism in regulatory policy, we should observe some difference in the activism of state supreme courts relative to that of the federal courts. According to the analysis presented here of a sample of federal circuit cases involving regulation statutes and administrative decisions from 1969 to 1996, it was determined that about thirty-seven percent of regulatory actions are reversed or limited upon review. (15) In the United States Supreme Court, the overall reversal rate over the last several decades has been thirty-nine percent, which is similar to the reversal rate of the circuit courts. (16) Economic regulation cases heavily outnumber social regulation cases, but we do not find a statistically significant difference in the reversal rates in the Supreme Court. For state supreme courts, it was determined that the overall reversal rate is about thirty-nine percent, and the rates of reversal for social and economic regulations are about the same. …

Journal Article
TL;DR: The Pioneer Fund's history has been examined in the context of the American eugenics movement as mentioned in this paper, and it has been shown that the Pioneer's founders were sympathetic to the eugenic agenda being crafted by the Nazis.
Abstract: In this they proceeded on the sound principle that the magnitude of a lie always contains a certain factor of credibility, since the great masses of the people in the very bottom of their hearts tend to be corrupted rather than consciously and purposely evil, and that, therefore, in view of the primitive simplicity of their minds, they more easily fall a victim to a big lie than to a little one, since they themselves lie in little things, but would be ashamed of ties that were too big. Adolf Hitler, Mein Kampf (1) In the spring of 2002, I published an article entitled "The American Breed": Nazi Eugenics and the Origins of the Pioneer Fund as part of a symposium edition of the Albany Law Review. (2) My objective was to present "a detailed analysis of the ... origins of the Pioneer Fund" (3) and to show the connections between Nazi eugenics and one branch of the American eugenics movement that I described as purveying "a malevolent brand of biological determinism." (4) I collected published evidence on the Pioneer Fund's history and supplemented it with material from several archival collections--focusing particularly on letters and other documents that explained the relationship between Pioneer's first President, Harry Laughlin, and Pioneer's founder, Wickliffe Draper. The evidence thus assembled convinced me that both Laughlin and Draper were sympathetic to the eugenic agenda being crafted in the mid-1930s by the Nazis. As they launched their private eugenic foundation, they hoped to emulate the German model. (5) To support my conclusions I pointed to factors such as Laughlin's arrangement for Draper's attendance at a Nazi population conference in Berlin, (6) as well as Laughlin's excitement on receiving his own Nazi-conferred honorary degree. (7) I noted parallels between projects funded by Draper before Pioneer was incorporated and similar projects in its early years as well as more recently. (8) The unyielding position of present day Pioneer Fund spokesmen--that the foundation's past contains no links to Nazi eugenics (9)--demonstrates to me the unwillingness of the Pioneer Fund to confront its troubling history. Rather than admitting to the obvious implications of its founders' actions and motives as revealed in their unguarded personal commentary, the Pioneer Fund today continues to declare that Laughlin was a "life-long scientist" (10) and Draper, merely a "gentleman scholar". (11) Pioneer supporters claim that rather than being part of the darkest chapter of the multifaceted story of American eugenics, Laughlin and Draper--and the Fund itself--are victims of a recent rash of political correctness and "Pioneer bashing". (12) Why does Pioneer refuse to face its history? Perhaps it is simply continuing a practice honed by Pioneer leaders like the late Harry Weyher. (13) As I explained in my first Albany Law Review article, past Pioneer spokesmen made few public statements, but more recently the Fund has been "particularly aggressive in leveling the accusation of 'McCarthyism' at anyone who connects its founding to the American eugenicists who celebrated Hitler's ascendancy." (14) This strategy--denying the obvious, feigning shock at any challenge to the sanitized, official history of Pioneer as compiled by Fund beneficiaries and apologists--resembles a well known tactic. It is called the "Big Lie" and it was made famous by Adolf Hitler, whose articulation of the scheme of deceit is quoted above from Mein Kampf. (15) The technique was used to justify his agenda against the Jews. (16) Pioneer leader Weyher resorted to the same technique as a counter to the invariably bad publicity generated by news commentary on the activities of Pioneer grantees (17) in addition to the growing historical documentation of the Fund's own dark beginnings. (18) Apparently, University of Western Ontario psychologist J. Philippe Rushton agrees with Weyher's strategy and has embraced his methods. …

Journal Article
TL;DR: The nationwide problem of custody relinquishment is surveyed, the reasons for its occurrence are discussed, the effects on the child and family are outlined, and existing federal laws that may help address the problem are explored.
Abstract: I. INTRODUCTION On February 18, 2000, the Washington Post printed an article documenting the struggles of several parents who have children with severe mental or emotional disabilities; one such story was particularly heartbreaking. (1) The Shamblin family--originally from Fairfax, Virginia--was forced to move fifty miles away in order to seek treatment for their autistic son, Gregory. (2) Gregory, who at the time the article was published was fourteen years old, experienced a period of violent outbursts requiring hospitalization. (3) The article noted that Gregory lived in a quiet group home for which the county paid $100,000 annually. (4) Although Gregory's placement suited him well, the Shamblins were facing a serious problem. The county, seeking to reduce costs, told the family that they either needed to take their child home or relinquish custody to the Department of Social Services. (5) If they chose the latter, the Department would become responsible for determining Gregory's treatment and could move him to a low-cost facility where he might not receive optimal care; Gregory's parents would lose their control over his treatment and placement. (6) The Fairfax area budget set for "non-mandated" care, such as the care that would have been provided to Gregory had he remained in that county, is small. (7) When that allocation is exhausted, the only way the state will pay for the services is by taking custody of a mentally disabled child, thereby placing the child in mandated care. (8) Seven and one-half million children in the U.S. have a mental disorder; half of these children have conditions causing serious disability. (9) Of those children with mental disorders, the Surgeon General estimates that 80% do not receive necessary treatment. (10) Finding and paying for adequate care for these children presents a serious problem for their families. Custody relinquishment--a nationwide issue--is becoming more commonplace as parents attempt to secure mental health services for their children. (11) Often, when mental health services are not available, the only solution is to relinquish custody of a child. Allowing the state to provide services may be necessary in the event that: community services are not available, (12) the school system has not classified the child as requiring services, (13) private insurance refuses to pay (14) or Medicaid is inaccessible. (15) As will be seen infra, the average middle-class family has an income too high to receive Medicaid, (16) yet too low to be able to pay for mental health services out-of-pocket. (17) Additionally, many residential facilities will only service children who are in state custody. (18) Once the state gains custody for the purpose of providing mental health services, it removes the child from his or her home and places the child either in foster care or a residential facility. Although several states have specific statutes prohibiting the requirement of custody in order to provide services, (19) the majority of states do not have such laws. Therefore, parents frequently believe that giving custody of their child to the state is their only means of receiving services. The problem of custody relinquishment is difficult to address and identify because there has been little litigation on the issue. When parents are asked to relinquish custody of their child, the court proceeding is often handled as one of parental abuse or neglect; therefore the actual reason for relinquishment is never addressed. (20) Parents, unaware that other means exist to access mental health services, can only raise the issue of custody relinquishment when they challenge it as unconstitutional or discriminatory. Part II of this comment surveys the nationwide problem of custody relinquishment, discusses the reasons for its occurrence, outlines the effects on the child and family, and explores existing federal laws that may help address the problem. …

Journal Article
TL;DR: In this paper, the authors argue that there are no justifiable grounds for denying jurisdiction to a person alleging torture under rules of universal jurisdiction, even if such a person is a foreigner captured in the course of war and is held outside the territory of the United States.
Abstract: INTRODUCTION Since September 11th, 2001, there has been a growing debate over the desirability of loosening international and constitutional prohibitions against torture in the "war" against terrorism (1) This paper critically appraises three justifications that federal courts have invoked to justify abstaining from reviewing the conditions of confinement of prisoners held on suspicion of involvement in transcontinental terrorism, including allegations of torture The first of these justifications is that international and constitutional constraints, including those against torture and those requiring due process, do not apply to prisoners that are held outside the territory of the United States (2) The second justification is that the prisoners were captured in the US war against terrorism and the President has designated them "enemy combatants" Further, in light of the "extra-ordinary circumstances" arising as a result of the attacks on the United States on September 11th, 2001, the enhanced authority of the President's War Powers is not subject to judicial review (3) The third justification is that where the prisoners are aliens, they are not entitled to constitutional and international protections otherwise available to citizens and friendly aliens (4) These grounds for abstaining from judicial review are now on appeal before the Supreme Court (5) This article explores whether extraterritorial torture of foreign citizens in the context of the war on terrorism ought to be subject to judicial review in the United States under the rules of customary international law In other words, does the extraterritorial location of an alleged violation of rules of customary international law against a foreign citizen preclude judicial review? I argue that there are no justifiable grounds for denying jurisdiction to a person alleging torture under rules of universal jurisdiction, even if such a person is a foreigner captured in the course of war and is held outside the territory of the United States To argue otherwise is problematic for at least two reasons First, by denying jurisdiction, federal courts effectively acquiesce to allegations of torture during interrogations as well as to cruel, inhuman, and degrading imprisonment conditions Second, denials of jurisdiction that definitively bar judicial scrutiny of the merits of executive decisions in times of war are contrary to the obligations of the United States under international law (6) Jurisdictional denials also legitimize an international and constitutional doctrine under which there are no limitations on executive power to hold suspects indefinitely, incommunicado, and without due process even if they are tortured (7) To demonstrate the sheer limitlessness of this doctrine of unconstrained executive power that, in turn, justifies loosening the prohibitions against extraterritorial torture, I proceed as follows: I begin by examining how best to frame the allegations of torture in a manner that is cognizable for purposes of obtaining federal judicial power with regard to the conditions of confinement of the Guantanamo Bay detainees I then examine the prohibition against torture under both international and US law and the "extraordinary circumstances" doctrine This doctrine has guided federal judicial responses to petitions challenging the conditions of confinement including allegations of torture of the Guantanamo Bay detainees by the confining authorities (8) In the main part of the paper, I compare and contrast the assumption of jurisdiction with respect to extraterritorial commercial conduct with the problems associated with accepting extraterritorial jurisdiction over questions regarding the conditions of confinement of the detainees By doing so, I show that federal courts are far more willing to assume jurisdiction over remote, extraterritorial commercial conduct (9) than they are to confer jurisdiction and enforce fundamental human and civil rights norms in the context of confinement conditions of non-U …

Journal Article
TL;DR: In this article, a research team under my leadership began studying state sponsored and encouraged torture and assassinations during Brazil's period of military rule, 1964-1985, and found that fourteen Brazilian police admitted to having been torturers or assassins during this period.
Abstract: I. INTRODUCTION In 1993, a research team under my leadership began studying state sponsored--and encouraged--torture and assassinations during Brazil's period of military rule, 1964-1985. Violence Workers, the book that resulted from this research, tells many stories about how to get torturers to talk. (1) If you have some questions, I can get into this subject later; what I would rather do today is tell you some of the things that we discovered in our research so that you think about these as lawyers and future lawyers. Among the twenty-seven Brazilian police that we interviewed, fourteen admitted to having been torturers or assassins during Brazil's military period. An important first discovery was the six conditions that we argue were associated in military Brazil with state-sponsored torture, beginning with unchecked and arbitrary executive rule. Another condition was an ideology of war--against communism, rebel guerillas, or evil. Third, secrecy of interrogation locations and procedures. Fourth, hidden identities of interrogators and of those under interrogation--through the use of caps, masks, and hidden interrogation locations--anything that disguised the victim, torturer, and/or the torture location. Fifth, a social control division of labor that accorded plausible deniability personally and outwardly to each actor within the social control system. Such a division of labor obscured the perpetrator's relationship to violence. For example, a group of Brazilian police would capture someone, bring the alleged subversive to interrogators, and then claim that, "We didn't torture anyone. We just brought the perpetrators to the interrogators. We don't know what happened to them after that." Finally, sixth, a public rendered impotent by fear. Bringing the elements of this torture process to the current United States war against terror, last year, in an Opinion piece for the Albany Times Union, I identified the existence of some of these conditions in the War against Terror, focusing particularly on how the United States government was operating at Guantanamo Bay. (2) I argued that the torture-nurturing conditions--unchecked or arbitrary executive rule, secret interrogation locations and procedures, hidden identities of interrogators and victims, and a public rendered impotent by a culture of violence and/or fear--have the capacity to nurture and excuse torture at the Guantanamo interrogation center. (3) II. ATROCITY FACILITATORS However, in this lecture I will focus on Brazilian violence workers, identifying several important findings from this book's research. Most important, I discovered that understanding atrocity requires examining atrocity facilitators as well as the direct perpetrators of such violence. The facilitators include, but are not limited to, international and national political decision-makers, including such people as former Secretary of State, Henry Kissinger, for his role in Chile. (4) Also included in the atrocity-facilitator category are national-level actors, including the guards who bring people to torture locations or guard them there, the doctors who certify that a prisoner was not tortured or who advise torturers about how much torture a person can take, and the notaries who verify that a prisoner has not been tortured. Is there now a precedent in international law for holding former Heads-of-State accountable for directly and indirectly facilitating terror? For example, Slobodan Milosevic? Such precedents seem to succeed or fail on a case-by-case basis, for example, the Agusto Pinochet case. Examining further the indirect atrocity facilitators, in my previous book, Political Policing: The United States and Latin America, I studied almost one-hundred years of United States involvement with foreign police, focusing particularly on interaction with Brazilian police. (5) That book examined an AID-CIA police training program that lasted between the 1960s and 1974, through which the United States funneled technical and material aid and know-how to the police of a government under violent military rule. …

Journal Article
TL;DR: For example, the authors pointed out that neither the Articles of Confederation nor the Constitution of 1787 dealt at length with equality and pointed out the inherent contradiction between the ideal of equality and the Framers' determination to protect individual liberties against undue invasion.
Abstract: I. AN INTRODUCTORY CRITIQUE Notions of equality that have marked the American experience built upon a heritage dating from the Declaration of Independence and tracts of the Revolutionary era. (1) Yet the promise of this legacy, modest though it was, failed to materialize when the wording of the Declaration and similar papers had to be transformed in the creation of a functional instrument of government. Neither the Articles of Confederation nor the Constitution of 1787 dealt at length with equality. The Framers of the Constitution, in particular, were thwarted by sectional interests that required covert recognition of slavery in the basic document. (2) Even more compelling was the attention directed to the establishment of a workable national government and of the federal system that it spawned. An implicit conflict lurked when egalitarianism was weighed against the Framers' determination to protect individual liberties against undue invasion. The former called for positive intervention on behalf of those open to attack or deprecation while the latter entailed the erection of negative barriers preserving personal rights against the intrusive acts of government. The Bill of Rights, approved soon after the Constitution became effective, reflected the traditional interests of the founding generation in their efforts to guard against an overweening officialdom much like that reviled by the colonists. It was the tripartite Lockean test that prevailed, not a viable defense of equality promoted as a matter of natural right. (3) The institution of slavery precluded any countermovement. An emphasis on property rights, linked to eighteenth century conceptions of liberty, encouraged a philosophy that tended to restrain and to discourage residual societal concerns. (4) It remained for the Civil War and Reconstruction to set in motion a turn to egalitarianism and to embody it in a series of constitutional amendments. In addition to the abolition of slavery by dint of the Thirteenth Amendment and the extension of voting rights to the newly emancipated slaves in the Fifteenth Amendment, the Fourteenth Amendment emerged as the ostensible centerpiece of equality. For the first time, a guarantee of equal protection became a part of the national charter. A second due process clause, intended to prevent state infractions, was also included. While the latter came to protect burgeoning commercial and industrial growth during the second half of the nineteenth century, a limited intermingling of due process and equal protection safeguards reappeared years later in a newfound defense of human rights. (5) Equal protection was almost lost amid a welter of constitutional constraints. In the later 1920s, Justice Oliver Wendell Holmes referred disparagingly to the clause as the "last resort of constitutional arguments." (6) Almost a half century earlier, disillusionment resulted when the promise of an enhanced body of civil rights dwindled, and the ideals of the postwar amendments--especially the equal protection clause--were virtually abandoned. A disheartening sense of reality came to the fore when a separate-but-equal formula was substituted by the Supreme Court, in many ways reflecting the public mood of the age. During the last decade of the nineteenth century, the Court's resort to this terse alternate in the case of Plessy v. Ferguson. (7) brought to an end any expectation of an impending revival of civil rights. (8) Little of a positive nature came to pass until the late 1930s when equal protection began to take on the rudiments of a tenable constitutional standard. It was in the midst of this new era that debates began to occur, first in the judicial forum, over the extent of a reanimated equal protection. The implications for the development of a civil rights jurisprudence, later reinforced by protective legislation, had to be considered, whereby looking toward the reversal of long-time practices of racial segregation that had dishonored the American heritage. …

Journal Article
TL;DR: The Pioneer Fund's early history is discussed in this paper, where the authors describe the role played by its key directors in opposing the civil rights movement on the basis of putatively scientific evidence of black intellectual inferiority.
Abstract: INTRODUCTION Recently in the Albany Law Review, Professor Paul Lombardo described the origins of the Pioneer Fund, noting the Nazi sympathies of Wickliffe Preston Draper, its founder, and Harry H. Laughlin, its first president. (1) My own recent book--The Funding of Scientific Racism: Wickliffe Draper and the Pioneer Fund--came to similar conclusions about Pioneer's early history and went on to document the role played by its key directors in opposing the civil rights movement on the basis of putatively scientific evidence of black intellectual inferiority. (2) In response, Professor J. Philippe Rushton, the new president of the fund, denied all these charges as based solely on the distortion of "misleading pieces of evidence very selectively picked" and the use of "invective and name-calling." (3) Rushton accused me in particular of taking the "low road" and characterized my work as "propagandistic." (4) Before offering my own reply to Rushton, let me first observe that I am pleased he has decided to air this issue in an academic journal. Even before reading my book--indeed, even before its publication--Rushton wrote to the executive editor at the University of Illinois Press and to the university president, with a copy to Pioneer's attorney, claiming, on the basis of the description on the Press web page, that I had defamed Pioneer, and suggesting that the Press "withdraw or amend" its advertisement. (5) This apparent attempt to exert legal pressure on my publisher was both disappointing and ironic since Rushton has justifiably complained about attempts to suppress his own academic freedom. (6) The fact that he has now chosen to engage in, rather than attempt to stifle, debate is to be commended. Although my book is filled with evidence--much of it from previously unexamined archives--amply demonstrating the truth of Pioneer's origin and agenda, I cannot, of course, reproduce the entire case in the limited space here. As a consequence, I shall confine myself to the major points raised in Rushton's article. I. THE VIEWS OF PIONEER DIRECTORS A. Wickliffe Preston Draper Rushton describes Pioneer's founders as "[d]istinguished Americans," (7) who created a fund to support "resolute, path-breaking scientists intrepidly working at the frontiers of knowledge in the study of human heredity." (8) Actually, Draper's attorney and fellow board member recounted in 1947 that Draper was "not ... concerned with research in human genetics since he felt that enough was known on the subject" (9) and was more interested in doing "something practical" with the knowledge, such as "moving the colored race to Liberia." (10) Consistent with this view Draper provided, during the 1930s, the finances for a campaign by Klansman Earnest Sevier Cox to repatriate blacks to Africa, an effort that Draper planned to resume after the war. (11) However, when a movement arose in the 1950s, not to repatriate blacks but to grant them long-deferred rights, Draper changed his priorities and poured millions of dollars into the segregationist cause (12)--most of this money going to scientifically-based attempts to keep blacks separate and unequal. (13) Harry Weyher, president of the Pioneer board, orchestrated these efforts, and John Bond Trevor Jr., another board member, participated in their planning and implementation. The two men together with Draper comprised the core of the organization. (14) In addition, Draper sent annual and very substantial personal gifts to numerous segregationist scientists as "token[s] of ... appreciation of [their] scientific efforts during the past year." (15) Anatomy professor Wesley Critz George, for example, received a series of checks from Wickliffe Draper (16)--totaling tens of thousands of dollars adjusted for inflation (17)--after writing pamphlets encouraging defiance of the Brown decision because blacks were genetically inferior and would "further[] the deterioration of our race and our civilization. …

Journal Article
TL;DR: In this article, the authors examine the vision of women's rights and equality as outlined in the Convention on the Elimination of All Forms of Discrimination Against Women, "CEDAW", and raise some of the possibilities and limitations associated with universalizing legal norms in a context of enormous global disparities.
Abstract: I. INTRODUCTION My presentation will examine the vision of women's rights and equality as outlined in the Convention on the Elimination of All Forms of Discrimination Against Women, "CEDAW". (1) The presentation will raise some of the possibilities and limitations associated with universalizing legal norms in a context of enormous global disparities, particularly in material and cultural terms. My friend and colleague, Professor Thandabantu Nhlapo, has raised some of these points in his presentation. I have chosen four issues to illustrate the possibilities and limitations of CEDAW's reach. (2) First, the limitations of universalizing legal norms are apparent in societies that confront legacies of war, dislocation, and dispossession. Much of Africa, for example, is currently experiencing the consequences of war, dislocation, and dispossession. There are other parts of the world, such as Afghanistan, that are also experiencing the ravages of war and dislocation. (I shall address the situation of Afghanistan later in this discussion.) Second, legal strategies adopted to achieve equality under the CEDAW model are premised on liberal assumptions that do not exist in large parts of the globe. Third, CEDAW advances a secular vision of individual rights enforcement and as a result could be limited in contexts of deeply entrenched cultural and religious mores. Finally, although CEDAW recognizes collective rights, it does not adequately address the contradictions inherent in the individual rights enforcement project within communitarian imperatives. In other words, CEDAW does not provide clear guidance in balancing individual rights with community needs in societies in which the interplay of individual rights and community concerns are constantly negotiated. Professor Nhlapo referred to these questions in his comments, and he has written extensively on these issues. (3) Our panel is focused specifically on how CEDAW operates in the advancement of human rights outside of Judeo-Christian contexts. These contexts, as exemplified by the four issues highlighted above, require innovative approaches to the implementation of rights. For the most part, the implementation of CEDAW will occur within societies with extremely limited resources and in those where there has been a breakdown of the formal institutions of the society. For women who have to survive in these contexts, culture is largely negotiated through economic considerations, which raise complicated and sensitive questions. When CEDAW was promulgated in the 1970s, the framework of international law, politics, and economics was clearly different from that which pertains today. The parameters and the human rights imagination of the globe was confined to demarcated boundaries--first world and third world, east and west, developed and underdeveloped--and the ravages of this contemporary period of globalization, and particularly the structural adjustment initiatives of the 1970s, had really not yet been fully experienced and appreciated. (4) It is arguable that the adoption of CEDAW was an indication of a universal consensus (albeit uneven) about the possibilities of legal processes in changing people's lives. The subsequent levels of local and global dislocation, violence, and lawlessness could not have been predicted. Nor could it have been predicted that the implementation of rights would still, thirty years later, be predicated on questions of daily survival. So too, this historical global juncture, described as one of the clash of cultures involving the Islamic world on the one hand, and the Judeo-Christian world on the other, was not contemplated. II. "CLASH OF CULTURES": THE UNIVERSALITY OF HUMAN RIGHTS NORMS While preparing my comments for this panel, I was playing in my mind some vignettes that I wanted to share with you which underscore the issue of "culture" in various contexts. I have chosen four: Vignette 1: I do not know if any of you have read Barbara Kingsolver's book, The Poisonwood Bible, (5) which was set in the Congo in the early 1960's. …

Journal Article
TL;DR: Perelman et al. as discussed by the authors define conflict-resolving institutions and illustrate how both procedural and outcome justice act as important criteria by which such institutions are to be judged.
Abstract: A logical analysis of the idea of justice would seem to be a very hazardous business. Indeed, among all evocative ideas, that of justice appears to be one of the most eminent and the most hopelessly confused. --Charm Perelman (1) I. INTRODUCTION One difficult question that political and moral thinkers have grappled with is how to limit justice. (2) We have a tendency to see justice as potentially applicable to almost any circumstance in which values are somehow involved with interpersonal behavior. (3) Yet in our contemporary parlance it does not seem appropriate to use the language of justice in all such situations. While there may be significant disagreement over which situations are appropriate for the use of the concept, there does appear to be some agreement that the concept is limited by its subject matter. (4) My goal in this paper is to examine one way in which the subject matter of justice has an impact on its content. (5) I will examine how a conflict-resolving institution presupposes certain standards of procedural justice and how those standards speak to the amount and kind of information that the conflict-resolving institution may justly consider. Each of these concepts will be developed in greater detail below. However, here I offer some preliminary remarks to clarify the subject. Justice is commonly divided into at least two categories: procedural justice and substantive justice. (6) Since both procedural and substantive justice have both form and substance, the term "substantive" is ambiguous. (7) Therefore, for the purposes of this article, I will employ the phrase "outcome justice" for what is commonly called substantive justice. (8) Justice is about situations of actual or potential conflict and the outcomes to these conflicts or the distributions made based on the resolution of these conflicts. (9) As Hume famously noted, justice is not an appropriate standard in situations of abundance or enlarged affections. (10) Rather, it is a concept that serves as a criterion by which we resolve conflicts over property distribution, over showing each other the proper amount of respect, and over the appropriate response to situations where others have been wronged. These and other conflicts define the scope of justice. As social constructions or organizations of people that seek to resolve interpersonal conflicts, conflict-resolving institutions obviously deal extensively with the concept of justice. Much of the first part of the paper will be occupied with an attempt to gain a better understanding of these concepts. First, I define conflict-resolving institutions and illustrate how both procedural and outcome justice act as important criteria by which such institutions are to be judged. Next, I examine the division between procedural and outcome justice as it applies to these institutions and the formal aspects of the norm of justice as they constrain these conflict-resolving institutions. Putting these two pieces together, we will then see more specifically how a conflict-resolving institution and the formal aspects of the division between procedural and outcome justice demand certain informational requirements that provide the substance of the procedural justice norms. Finally, we will examine some implications of these considerations for the authority of the conflict-resolving institutions. Ultimately, the purpose of this paper is to consider the particular conditions under which conflict-resolving institutions operate and to articulate how those conditions create requirements that restrict the content of procedural justice as applied to such institutions. These requirements limit both the general principles we articulate and the individual judgments we make. A particular focus will be upon notions of procedural justice as intimately linked to the conditions of conflict resolution. (11) We will see that the project of institutional conflict resolution and the need for that resolution to be authoritative presumes limitations on the kinds of information that should be considered in the resolution: too much or the wrong kind of information can contaminate a resolution process and render it unjust. …

Journal Article
TL;DR: In this paper, the First and Fourteenth Amendments do not protect a news report, which includes a professional entertainer's entire act, from a state law right of publicity damages claim.
Abstract: I. INTRODUCTION In Zacchini v. Scripps-Howard Broad. Co., decided in 1977, the United States Supreme Court considered the First and Fourteenth Amendments' relationship to a state tort action based on a professional entertainer's "'right to the publicity value of his performance." (1) The case involved an entertainer whose act consisted of him being shot from a cannon and landing in a net. A newscaster filmed this act at a county fair, and later aired the video on the news. The entertainer filed suit as a result. At issue in the case was the existence of a newscaster's First Amendment privilege from infringement for telecasting the entertainer's entire act or performance. (2) In resolving this question, Mr. Justice White, writing for the majority, concluded that "the First and Fourteenth Amendments do not require" the telecast of an entertainer's entire act or performance be immunized from a right of publicity damage claim. (3) Unresolved by the Court's holding are the myriad right of publicity claims that do not involve an entertainer's entire act. (4) Part III of this article will examine those claims. In doing so, existing approaches of state and lower federal courts in deciding the First and Fourteenth Amendments' privilege issue will be analyzed. (5) This analysis of the existing case law will be followed in Part IV by comments, criticism, and conclusions concerning the approaches. (6) Before analyzing the present case law or offering criticism, comments, and conclusions, Part II of this article will take a closer look at Zacchini. Although the Court's opinion did not resolve instances dealing with celebrity publicity right claims that involve less than an entertainer's entire act, the opinion suggests to lower courts how they may approach those cases. II. ZACCHINI V. SCRIPPS-HOWARD A. The Approach of the United States Supreme Court's Majority As indicated in the introduction, the holding in Zacchini makes it clear that the First and Fourteenth Amendments do not protect a news report, which includes a professional entertainer's entire act, from a state law right of publicity damages claim. (7) Before reaching this conclusion, the Court analyzed the speech and press interests guaranteed by the First Amendment that could support such a privilege. Important to the Court's majority was the question of whether the public's interest in news or entertainment would be unduly affected if the telecast of the entertainer's entire act was not privileged. (8) When considering this problem, the Court analogized a publicity right claim to a claim for compensation. (9) After doing so, it concluded that "[t]he Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner...." (10) Illuminated within this passage is the Court's recognition that the state claim is akin to a copyright infringement claim. This kinship rests on an economic incentive that the state right makes available, as does a copyright. As Zacchini also indicated, the state right "provides an economic incentive for him [the performer] to make the investment required to produce a performance of interest to the public." (11) Underlying a copyright, which the Constitution authorizes Congress to grant, "'is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors....'" (12) Therefore, the Constitution does not privilege the telecast of an entertainer's act, because if it did the public welfare would suffer. Not only would the public interest suffer if the Constitution privileged a newscast that included a performer's act, but also, the Zacchini majority reasoned, such a privilege would not be needed to protect the public's other interests. …

Journal Article
TL;DR: Zadvydas v. Davis as discussed by the authors was the landmark case that began the successful linking of the Constitution to deportation proceedings through invocation of the Fifth Amendment, and it was the first case in which the U.S. Supreme Court granted writ of certiorari in both cases.
Abstract: INTRODUCTION Could an American ever conceive of being detained in a prison cell indefinitely? Our Nation's Founding Fathers could not fathom such an unscrupulous idea, knowing that this would run afoul of central American values--life, liberty, and property. (1) Arguably, these constitutionally guaranteed interests are at stake not only for Americans but for anyone within the United States' borders. These vital interests were at stake for thousands of illegal aliens who were indefinitely detained, but in Zadvydas v. Davis, a 5-to-4 decision, the Supreme Court held that such indefinite detention was unconstitutional. (2) Zadvydas focused on alien deportation proceedings and the Fifth Amendment (3) by consolidating two cases with analogous facts but different outcomes. (4) Specifically, the Supreme Court's ruling involved Kestutis Zadvydas and Kim Ho Ma, who were both ordered to be deported from the United States as a result of various crimes that they had committed. (5) At the time, the Immigration and Naturalization Service [hereinafter INS] had been unsuccessful in finding a country willing to accept the aliens. (6) As a result, both aliens remained in custody past the ninety-day removal period. (7) The aliens each filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. [section] 2241, (8) contesting their continued detention. (9) The District Court for the Eastern District of Louisiana granted Kestutis Zadvydas the writ, (10) but the U. S. Court of Appeals for the Fifth Circuit reversed the decision. (11) Like the district court in Louisiana, the District Court for the Western District of Washington granted Kim Ho Ma's writ. (12) However, unlike the Court of Appeals for the Fifth Circuit, the Ninth Circuit affirmed the District Court's decision. (13) In an attempt to reach a consensus and to address the controversial issue of indefinite detention, the U. S. Supreme Court granted writ of certiorari in both cases. (14) The purpose of this Note is to analyze how the Court reached the decision in Zadvydas v. Davis. Part I discusses the history of the Due Process Clause of the Fifth Amendment in the removal context. (15) Part II discusses the current state of alien removal and deportation. (16) Part III provides a factual and procedural background leading up to the Zadvydas ruling and analyzes the case itself while focusing on the criteria the Court considered in reaching its decision. (17) Part IV examines the legal and social implications following the ruling and the effects of Zadvydas after September 11, 2001. (18) I. HISTORY OF DUE PROCESS IN DEPORTATION SETTINGS A. Deportation and Constitutional Rights Alien residents have attempted to link the U. S. Constitution to deportation proceedings by invoking the Fourth and Sixth Amendments, but these attempts have proven unsuccessful. (19) Yamataya v. Fisher has been labeled as the landmark case that began the successful linking of the Constitution to deportation proceedings through invocation of the Fifth Amendment. (20) Kaoru Yamataya was a Japanese immigrant who came to the United States in 1901. (21) As an immigrant during this time period, Yamataya was considered deportable because "she was a pauper and a person likely to become a public charge." (22) Yamataya contested the deportation proceedings initiated against her, claiming that they were unjust. (23) The Court relied on the principle that Congress has the power to establish regulations governing aliens without judicial review. (24) The Court, however, drew a distinction between an alien seeking admission into the United States and an alien already in the United States. (25) The Court indicated that the failure to afford an alien resident notice or a fair chance to be heard prior to deportation, constituted a violation of the Due Process Clause of the Fifth Amendment. (26) The Court went on to say: [I]t is not competent for the Secretary of the Treasury . …

Journal Article
TL;DR: The first tentative steps allowing parties to file all their papers electronically have been undertaken on an experimental basis in the Commercial Divisions of the New York State Supreme Court, and this practice is about to be expanded to a number of other courts as discussed by the authors.
Abstract: It has been over a decade since the adoption of New York's Rule relating to the sealing of court records. (1) In that time, a substantial body of law has developed interpreting and applying the rule pertaining to the sealing of court records. Now is a particularly appropriate time to undertake a review of that decisional law because New York courts have entered the age of electronic filing. The first tentative steps allowing parties to file all their papers electronically have been undertaken on an experimental basis in the Commercial Divisions of the New York State Supreme Court, and this practice is about to be expanded to a number of other courts. Eventually, the New York State Office of Court Administration hopes to implement electronic filing in most trial courts in the state. Electronic filing raises serious issues of public access and the privacy protection of litigants. Routine review of court records by the public is virtually unheard of. Only the press, the parties, or persons directly interested in a file routinely search through the hard copy records reposing in the various county clerks' offices throughout the state. Under an electronic filing system, all papers filed with the court will potentially be available to anyone with access to the internet. Moreover, with search engines, the public will have ready access, at the touch of a button, to an array of potentially private and embarrassing information regarding anyone who was a party or who was even mentioned in papers filed in any action in any court. The purpose of this article is to review how the rule has operated since its inception, to analyze the case law applying the rule and to examine whether the rule is appropriate for the electronic age. I. THE PURPOSE OF THE RULE The rule provides that a court shall not enter an order in a civil action (2) sealing court records, in whole or in part, "except upon a written finding of good cause, which shall specify the grounds thereof." (3) The rule was drafted by the New York State Advisory Committee on Civil Practice at the request of then-Chief Judge Sol Wachtler and the Office of Court Administration. (4) The rule was adopted at a time when the plaintiffs' bar, consumer groups, and state and national public figures were expressing concern that sealing orders were preventing the public from learning about hazards arising from unsafe products or environmental toxins. (5) These groups argued that public hazards were being concealed by demands of defense counsel that the entire litigation file be sealed as a condition of settlement. (6) Plaintiffs' attorneys also argued that such sealing orders prevented them from using information obtained in one action to prosecute similar actions against the same defendants for the same product defects or toxic hazards. (7) Defense counsel argued that such agreements were "necessary to facilitate settlements, protect trade secrets, ... or prevent adverse publicity which might cause juries to be biased against the defendant in future cases." (8) The New York rule is designed to end the parties' control over the sealing decision. It requires the court, when presented with a request to seal any or all of the court records, to weigh the interests of the public's qualified right to access court records (9) against the parties' interest in privacy. (10) The rule is designed to end what had become a common practice of pro forma approval by the courts of confidentiality and sealing orders entered into by the parties. (11) The rule is an admonition to the courts that the public's oversight of the courts and its interest in the dissemination of important information must be balanced against the legitimate privacy interests of the parties on a case-by-case basis. As one court aptly stated, "[w]hat it all boils down to ... is the prudent exercise of the Court's discretion. In exercise of that discretion the Court engages in a balancing process weighing the potential for harm and embarrassment to the litigants and public alike. …

Journal Article
TL;DR: A discussion of the nexus of torture, individual and collective human rights, indigenous peoples' identities, marginalization, and international law can be found in this paper, where the United Nations Draft Declaration on the Rights of Indigenous Peoples (NDOP) is presented.
Abstract: Marginalization and identity come to the forefront when we consider the plight of indigenous peoples as targets of torture. In general, indigenous peoples were and still are the first to be marginalized when issues of an essentially political nature--who gets what--arose. This resultant push to the periphery and the attendant silencing and dehumanizing exacerbates the perception by those in positions of political power that indigenous peoples are expendable as individuals and communities. Therefore, when oppression and fear become tools of control, indigenous peoples become convenient targets precisely because they have been marginalized. The perception of indigenous peoples by perpetrators is that, as torture victims, indigenous peoples can be used as examples with seemingly little risk from the indigenous peoples themselves or anyone else coming to their defense. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) (1) and the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Convention Against Genocide) (2) are significant among international human rights instruments insofar as they define and establish criteria and mechanisms for the redress of gross violations of human rights. Adopted by the General Assembly in 1984 and 1951, respectively, each document was drafted at a time when individual human rights were understandably of primary concern. Arguably, the intervening decades saw a legal excursion into balancing individual and collective rights (3) with the concurrent drafting of the International Covenant on Civil and Political Rights (ICCPR) (4) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), (5) culminating with their adoption by the General Assembly in 1966. This activity to develop international human rights instruments was undertaken virtually to the exclusion of collective or community rights, with the noted exceptions of the Convention Against Genocide and the ICESCR. (6) With this as a backdrop, we may now turn to a discussion of the nexus of torture, individual and collective human rights, indigenous peoples' identities, marginalization, and international law. In ever expanding ways, indigenous peoples are finally being recognized and accepted as having a voice and role in global political affairs. (7) Their political activities vis-a-vis global relations--as well as their political, legal, and socio-economic arrangements--challenge our current assumptions, norms, and practices of protecting and promoting human rights as well as international law in general. More specifically, individual as the accepted norm or foundation upon which human rights protection and promotion ought to be based--and, concurrently, our understanding of torture--is shown to be limited and limiting. These challenges make it clear that the Convention Against Torture and the Convention Against Genocide have significant constraints with respect to protecting the human rights of indigenous peoples as such. (8) The United Nations Draft Declaration on the Rights of Indigenous Peoples (9) could potentially minimize these strictures if it retains a core orientation of collective rights as it makes it way through the Commission on Human Rights and, eventually, the General Assembly. Of initial relevance is that the Convention Against Torture, in Article 2, stipulates that the perpetrator be a public official or agent thereof. (10) Historically, as well as today, indigenous peoples on virtually every continent have experienced torture by such perpetrators and therefore would be covered as individuals under the terms of the Convention Against Torture. In more recent decades, however, non-state actors also have engaged in torture against indigenous peoples. In situations of armed conflict many parties to the conflict essentially are unaffiliated militarized groups. For example, the various Bambuti peoples located in the eastern Democratic Republic of the Congo and numerous indigenous peoples of South America--such as the Kogi of the Sierra Madre de Santa Marta in Colombia--are being victimized because they are essentially in the wrong place at the wrong time. …

Journal Article
TL;DR: Ventura's story may be the exception to the rule, but it makes an important point: had the stagers of the debate chosen to invite only the major party candidates, Ventura almost certainly would not have been elected as mentioned in this paper.
Abstract: Scholars say that 90% of the ideas that have shaped our democracy have come from third parties. These include a women's [sic] right to vote, abolition of slavery, and the minimum wage, all issues that had been ignored--vehemently opposed, actually--by the two main parties. If we close out the debates to third party ideas, we are sounding the death knell for democracy.--John Hagelin (1) I. INTRODUCTION In early 1998, former professional wrestler, movie star, and Navy SEAL Jesse "the Body" Ventura began to indicate that he intended to run in the Minnesota gubernatorial race. Ventura chose to run as a third party candidate: he had worked as a campaign manager for other Reform Party candidates in the past, and the Party felt he fit with the image of their founder, Texas maverick Ross Perot. (2) While Ventura's name recognition and offbeat antics initially endeared him to many voters, by late September his support in the polls had dropped to only 10%: by contrast, Hubert Humphrey III, the frontrunner, was generating 49% support. (3) A series of debates were scheduled to begin in early October. Despite Ventura's low support at the time, he was invited to participate, in large part because his staff chairman was also co-director of the "Minnesota Compact," a program geared toward improving the 1998 campaign (including the candidate debates). (4) As the debates went on, viewers warmed to Ventura's nonpartisan message railing against "politics as usual." (5) By October 20--less than three weeks after the first debate--Ventura's support had risen from 10% to 21%; meanwhile, Humphrey and his Republican foe, Norm Coleman, had fallen into a virtual dead heat. (6) One commentator noted that Humphrey's slide and Ventura's gain were both in large part due to their debate performances. (7) The debates continued. After the final debate, held in a public television station in October, Ventura's support had risen again, to 27%. (8) By the election, Ventura captured the state governorship with 37% of the vote, while Humphrey finished last with only 28%. (9) The Humphrey camp openly acknowledged that their biggest mistake in the campaign was insisting that Ventura be included in the debates. (10) In the end, Ventura's camp admitted that, had he not hit "a home run" in the first debate, his poll numbers likely never would have risen and he would not have been elected. (11) Jesse Ventura's story may be the exception to the rule, but it makes an important point: had the stagers of the debate chosen to invite only the major party candidates, Ventura almost certainly would not have been elected. There is no stronger illustration of the importance of debates in today's political world--particularly for third party candidates lacking the strong financial and historical support of a well-established campaign machine behind them. The Supreme Court once noted that "the primary values protected by the First Amendment ... are served when election campaigns are not monopolized by the existing political parties." (12) However, the Court made a mockery of that statement when it ruled, in Arkansas Educational Television Commission v. Forbes, (13) that public broadcasters could exclude third party candidates from debates so long as their reasons for doing so did not constitute viewpoint discrimination." (14) The Forbes ruling essentially closed the door to minor party candidates successfully campaigning for public office unless those candidates, like Ventura, are fortunate enough--either through name recognition or other political connection--to be included in the debates. The situation is no better for candidates seeking to participate in debates not hosted by public broadcasters. Under the current state of the law, these candidates cannot even be considered for inclusion unless they have significant support in national polls. (15) While many bills have come before Congress in the last decade seeking to change this requirement, none have passed. …

Journal Article
TL;DR: The Egelhoff case as discussed by the authors is a classic example of a case in which the majority of the US Supreme Court rejected the preemption presumption against preemption in traditional state regulation such as family law.
Abstract: When Paul Simon asked, "Where have you gone, Joe DiMaggio?," Mrs Robinson replied, "Joltin' Joe has left and gone away" (1) But if Simon was a law professor (what a loss to music!), the lyric might have been "[w]here have you gone, the presumption against preemption? Federalists turn their lonely eyes to you" The Supreme Court regularly states that when Congress legislates "in a field which the States have traditionally occupied we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress" (2) But this declaration is devoid of force and no longer even hortatory If the national motto "In God We Trust" is a "ceremonial deism," the presumption against preemption is a ceremonial federalism (3) Consider Egelhoff v Egelhoff, (4) in which the Court held that the federal Employee Retirement Income Security Act of 1974 (ERISA) (5) expressly preempted a Washington law providing that the designation of a spouse as the beneficiary of a non-probate asset is automatically revoked upon divorce (6) While the majority acknowledged the applicability of the "presumption against preemption in areas of traditional state regulation such as family law," it summarily dismissed the presumption because "Congress ha[d] made clear its desire for pre-emption" (7) Thus, the Egelhoff majority proved that clarity, like beauty, is in the eye of the beholder Any express preemption case must begin with a divination of what exactly Congress sought to preempt, in a word, the field that Congress sought to preempt Surely, the Court could not have meant that ERISA expressly preempts the entire field of state inheritance law While it might have meant that ERISA expressly preempts only those state laws that conflict with ERISA's objectives, the Egelhoff case was a poor vehicle for such an assertion insofar as the Washington statute reinforced ERISA's ultimate objective of fair protection of employee benefits (8) The problem in Egelhoff was that Congress poorly expressed itself since it is clear that Congress intended ERISA to directly preempt state law, but what is not clear is the scope that Congress intended that preemption should have--enter the presumption that the preemption, like Joe DiMaggio, has "left and gone away" The presumption is against a broad reading of federal law that purports to preempt the state law and that expressly acts like other clear statement rules to ensure that the federal political process has focused upon the displacement of state authority Without such a rule, there is no assurance that Congress has in fact attended the consequences of displacing state authority This holds true whether one conceives of federalism as primarily enforceable by politics or by judges Advocates of politically enforceable federalism should be willing to admit that upholding ambiguous congressional assertions of preemption undermines the very premise of politically enforceable federalism--that political process will carefully weigh the balance of federal and state interests before displacing state authority Supporters of judicially enforceable federalism may wish that judges would examine the substance of federal law to determine if it is an improper invasion of state authority, but at the least, they will agree that a clear, unambiguous statement by Congress concerning the scope of its express preemption is a minimal safeguard Consider Geier v American Honda Motor Co, (9) in which the Court found implied "obstacle" conflict preemption (10) of ordinary state principles of tort when Congress authorized the Secretary of Transportation to promulgate minimum auto safety standards in order to reduce injuries and deaths resulting from traffic accidents, and further, the Secretary used that authority to issue regulations that required some autos, but not all, be equipped with air bags …

Journal Article
TL;DR: McGinnis and Rehnquist as mentioned in this paper see the Framers' federalism as a way of reinforcing social norms that arise from civil society by limiting the actions of the national government.
Abstract: Steven G Calabresi succinctly identified the three elements of the Rehnquist Court's revision of constitutional federalism The contemporary Supreme Court is willing for the first time since 1937 to police the boundary lines of the congressionally enumerated powers over the regulation of commerce and the enforcement of the Fourteenth Amendment [T]he Court erected a firm Tenth Amendment barrier to congressional efforts to commandeer state legislatures and executive entities [and] expanded the doctrine of sovereign immunity so that it imposes a very high barrier to congressional efforts to expose states to private lawsuits either in federal or in state court (1) While there is consensus on what the Rehnquist Court has done, there are many ideas on the reasons behind this renewed attention to federalism Professor John O McGinnis sees the Rehnquist Court's jurisprudence as a comprehensive and coherent effort to "invigorate[] decentralization and the private ordering of social norms that Alexis de Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution" (2) While the old Warren Court's mission was "empowering and perfecting democracy, particularly at the national level," (3) the Rehnquist Court is endeavoring to empower states and local governments to foster citizen engagement in politics and to curtail the deleterious influence of special interests (4) McGinnis and the Rehnquist Court see the Framers' federalism as a way of reinforcing social norms that arise from civil society by limiting the actions of the national government For McGinnis, such an effort currently is required due to the extent to which special interests have come to dominate national domestic politics because a distracted public has become content to entertain itself with television and accept symbolic gestures from politicians as a substitute for public policy (5) This sorry state of affairs is a product of over-centralized "mass democracy" (6) McGinnis musters evidence from "[m]odern political science" that seems to demonstrate that "mass national democracy often produces legislation that neither reflects majority will nor is efficient, since special interests dominate legislators while most citizens are rationally ignorant of the salient political issues" (7) The damage done to the polity by over-centralization can be partially undone by empowering private civic organizations and state and local government According to de Tocqueville, McGinnis and the Rehnquist Court, civic organizations are an antidote to the mischief of faction According to this formula, "civil associations organize to meet the common goals of their members," unlike political factions, which "try to use government coercion for their own ends" (8) "These civil associations have influence at the local level, making local government more responsive and contributory to a more public-spirited citizenry" (9) Moreover, the American federal system creates a marketplace in which local governments and state governments exist in competition with each other, which should drive them to deliver their public goods in the most efficient way In this "'laboratory of democracy,"' the "successful experiments of yesterday become the effective public policy of tomorrow" (10) How GOLDEN IS THE PAST? If McGinnis is correct in his assessment of the Rehnquist Court's objectives, then the Court's solution to the twin problems of a disengaged citizenry and an unresponsive, faction-dominated government is a return to early eighteenth century America as chronicled by Alexis de Tocqueville De Tocqueville noted that a centralized state "may contain subjects, [but] it has no citizens" because "the source of public virtue is dried up" (11) In the United States of the 1830s, however, "the interests of the country are everywhere kept in view," and each citizen "boasts of its success, to which he conceives to have contributed; and he rejoices in the general prosperity by which he profits …

Journal Article
TL;DR: In this paper, the authors argue that the level of scienter required by the statute in order to be found criminally liable is not clear with respect to the remaining elements of the statute.
Abstract: Many Americans have used or have browsed the Internet. (1) Undoubtedly, many of these computer users do not possess knowledge that includes the myriad of technical functions that occur, or could occur, while browsing and accessing the Internet. Entering into this technological frustration is Title 18 of the United States Code--specifically, 18 U.S.C. [section] 1462. (2) Section 1462, entitled "Importation or transportation of obscene matters," states that "[w]hoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any ... interactive computer service (3) ... for carriage in interstate or foreign commerce" of any obscene material shall be found criminally liable. (4) Section 1462 continues to elaborate its dictates by stating that "[w]hoever knowingly takes or receives, from such ... interactive computer service ... any matter or thing the carriage or importation of which is herein made unlawful--[s]hall be fined under this title or imprisoned not more than five years, or both." (5) One need only purposefully, or even accidentally, enter a few adjectives or adverbs as search terms into a search engine (6) to become surprised by the Internet's red-light district, which will almost certainly contain iniquitous web pages that one could reasonably perceive to be obscene to the average person. Or one may be conducting legitimate business, decide to enter into the Internet browser's URL box (7) an address that appears to be innocent and legitimate, and become surprised by the appearance of not-so-innocent and not-so-legitimate material. (8) I. INTRODUCTION This comment addresses the broad, sweeping language of section 1462 and demonstrates how the language of the statute may subject innocent behavior to the threat of criminal liability. Specifically, the level of scienter required by the statute in order to be found criminally liable is not clear with respect to the remaining elements of the statute that follow the level of scienter mentioned in the beginning of the statute--knowingly. Further, the precise meaning and application of knowingly is explored within the context of this statute. (9) This comment argues the following points that will help clarify what should be the meaning and scope of section 1462. First, the requisite scienter mandated by section 1462 should be applied to every material element throughout the entire statute to avoid criminalizing innocent and mistaken behavior. (10) Second, if the U.S. Supreme Court, or any other federal court, were to analyze the knowingly requirement of section 1462 with respect to each material element of the statute, the court should follow strong precedent that exists for criminal-statutory interpretation, notably, United States v. X-Citement Video, Inc., (11) which analyzed a statute's level of scienter and its application in a statute quite similar to section 1462. (12) Third, and finally, any interpretation that the Supreme Court, or any other court, proffers concerning the application of the requisite scienter to the material elements of the statute should follow and find support in the Model Penal Code's approach to interpreting a criminal statute with respect to defining the level of scienter in a penal statute. (13) Part II discusses several hypothetical and technologically based examples in which computer users might presume their activities to be lawful and innocent; (14) yet, through a subsequent examination of section 1462, (15) they would find themselves subject to criminal liability. These examples provide a hypothetical and factual background that illustrates both the difficulty of interpreting section 1462 and the pragmatic problems that section 1462 poses. Part III provides a brief discussion of the Internet and the social ills that section 1462 was designed to quell and provides a discussion on the legislative history produced with this statute, which does not contradict this author's proffered interpretation of section 1462 and potentially rescues the average computer user from the criminal stigma and cast of section 1462's language. …

Journal Article
TL;DR: In this paper, the authors examine the controversy over racial profiles with regard to a proposed monument to honor the fallen firefighters in the World Trade Center towers and conclude that negative and positive racial profiling is part of the larger project of constituting this nation.
Abstract: INTRODUCTION Racial profiling usually conjures up images of police officers acting on negative stereotypes concerning the criminality of people of color and subjecting them to greater surveillance and state. (1) This type of negative affirmative action is practiced by police, prosecutors, judges, and juries alike. (2) Before 9/11, an emerging bipartisan consensus denounced this practice. (3) As the arguments condemning racial profiling were gaining strength, the events of 9/11 diluted such support as terror became racially embodied in the faces of the nineteen who were accused of hijacking the planes on that fateful day. (4) Many who were hostile towards the practice before 9/11--including those from communities most often subject to racial profiling by the criminal justice system--began to say that some degree of racial profiling was perhaps necessary. (5) While this type of negative racial profiling is problematic, it is also important to focus on positive racial profiling. (6) Following 9/11, several newspapers published photographs of firefighters who died when the World Trade Center Towers came crashing down. (7) Notably, newspapers recounted stories of their heroism. (8) As profiles in courage, these heroes also had a race and gender--they were almost exclusively white men. (9) The race and gender profile of the heroes was not an accident; rather, it was produced by the hiring practices of the Fire Department of New York (FDNY). (10) The criticism of the hiring practices of the FDNY should not be taken as a criticism of the bravery and integrity of the firefighters with regard to their service as firefighters. It is important, though, to ask--with regard to negative and positive racial profiling--why are our criminals people of color and why are our heroes white? This essay explores how negative and positive racial profiling is part of the larger project of constituting this nation. (11) Part I examines a project referred to as differential Americanization as it operates during times of war or crisis. Part II analyzes the controversy over racial profiles with regard to a proposed monument to honor the fallen firefighters. I. DIFFERENTIAL AMERICANIZATION DURING WARTIME War, perhaps more than anything else, forces a nation's subjects to renegotiate their relationship with the nation. When the United States engages in war, it also engages in a process of deepening the Americanization of its citizens. It does this by calling upon its citizens to collectively band together to do their patriotic duty against a common enemy. By performing patriotic gestures, its citizens feel a comradeship that consolidates this imagined community that is America. It is this feeling of comradeship that has made millions of people willingly die for their nation. (12) When the United States engages in war, its marginal citizens often find themselves in an awkward position. As a victim of state-sponsored neglect, discrimination, and terror, how do you respond when that very state calls upon you to do your duty? In African American communities, serving in the armed forces has been debated in every war. During the Civil War, Frederick Douglass urged Blacks to enlist in the army, saying, "[H]e who fights the battles of America may claim America as his country--and have that claim respected." (13) This theme has been echoed in many other writings and speeches. During World War I, W. E. B. Du Bois said: We of the colored race have no ordinary interest in the outcome. That which the German power represents today spells death to the aspirations of Negroes and all darker races for equality, freedom and democracy. Let us not hesitate. Let us, while this war lasts, forget our special grievances and close our ranks shoulder to shoulder with our own white fellow citizens ... that are fighting for democracy. We make no ordinary sacrifice, but we make it gladly and willingly with our eyes lifted to the hills. …