Category Archives: Human Rights

New Article: Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach

CabinNew Article: Maria Massimo, Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach, 62 B.C. L. Rev. 273 (2021). Abstract below:

Throughout its history, the United States has perpetuated a double standard in regard to international human rights by urging other nations to protect and promote these rights, while simultaneously forgoing international human rights treaties in favor of its own Constitution and domestic human rights laws. Notably, the United States does not recognize one of the fundamental rights introduced by the Universal Declaration of Human Rights in 1948 and contained in the International Covenant on Economic, Social and Cultural Rights: The right to adequate housing. Failure to recognize housing as a human or constitutional right has led to a worsening affordable housing crisis in the United States. Domestic policy has proven insufficient to combat this crisis, and the United States must adopt a different approach for resolution. This Note argues that state governments should borrow from international human rights treaties and foreign housing law, and recognize housing as a justiciable right in an attempt to mitigate the affordable housing crisis. States can best ensure a right to housing by including housing as a right in their respective constitutions and creating oversight bodies to promote and protect this new constitutional right.

New Article: Reconstructing the Algebra of Race and Rights

Raul Carrillo, Reconstructing the Algebra of Race and Rights, L. & Pol. Econ. (Feb. 18, 2021). Introduction below:

In The Alchemy of Race and RightsPatricia Williams critiques capitalism for narrowing our demands on the state to monetizable claims, arguing the “purchasing of our liberties; the peonage of our citizenship” situates us in eternal stasis. If “…a change on one side of the equation is always balanced by the algebraically obligatory change on the other” then “[m]oney reflects law and law reflects money, unattached to notions of shared humanity.” For advocates demanding direct deployment of public money, (via a right to guaranteed income, for example), a rigid conception of public finance is a trap.

Critical legal scholars persuasively argue rights are abstract, unstable, and indeterminate. But these qualities are not generated merely by courts: indeed, issues of justiciability are downstream from the broader public law of collective governance and monetary design, which shapes our understanding of each other as economic agents and units, and the form and function of rights demands in the first place. 

New Article: From Stigma to Dignity? Transforming Workfare with Universal Basic Income and a Federal Job Guarantee

Lynn Lu, From Stigma to Dignity? Transforming Workfare with Universal Basic Income and a Federal Job Guarantee, 72 S.C. L. Rev. (forthcoming 2021). Abstract below:

By the summer of 2020, pandemic isolation gave way to mass protests supporting the Movement for Black Lives with calls to end anti-Black police brutality and mass incarceration, but also seeking to end exploitation of Black essential workers and increase attention to longstanding economic devastation of divestment from communities of color. With physical health and safety linked inextricably to material deprivation came heightened public demands for racial, social, and economic justice to help marginalized communities not just survive in times of crisis, but thrive every day.  

As the COVID-19 pandemic takes a catastrophic toll on lives and livelihoods across the United States, the harshest impact of the unpredictable virus has disproportionately fallen with foreseeable accuracy on Black, immigrant, poor, and elderly people, who are most likely to live and work in close contact with others and to have less access to health care or emergency savings. The speed and severity of the viral contagion has rendered devastatingly, undeniably visible the vast, racial gap between those with reliable health care, child care, housing, nutrition, household wealth, and income and those without, but that gap was already widening well before the pandemic amid accelerating economic inequality, racial disparity, and precarity for those fortunate enough to find paid work. 

This Article examines reinvigorated proposals for universal basic income (UBI) and a federal job guarantee (JG) to reduce poverty, income inequality, and the widening racial wealth gap. It examines the potential of such reforms to put more money into the hands of those most likely to use it while ending involuntary unemployment and boosting labor conditions for all, but especially Blacks and people of color with less access to generational wealth, higher education, and protection against employment discrimination. It concludes that both UBI and JG are necessary but each insufficient on its own to achieve greater economic security and mobility, with dignified work for all. 

Crucially, a universal minimum income untethered to any form of work requirement is essential to break the racialized and gendered stigma that frames economic need as welfare dependency; equally important is the guarantee of public employment at a living wage to those who voluntarily choose to avoid gaps in earned income and employment history but have historically been excluded from the best work-life options. Together, UBI and JG form vital pillars of social support for withstanding future crises, large or small, and for creating the future society we want.

New Jotwell Review: Visibly Fragile America

New Jotwell Review: Marc-Tizoc González, Visibly Fragile America, JOTWELL (January 4, 2021) (reviewing Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights, and The End of Invisible Man, 52 Colum. Hum. Rts. L. Rev. __ (forthcoming, 2021)).

New Article: The Welfarist Right to Counsel

New Article: Shaun Ossei-Owusu, The Welfarist Right to Counsel, UCLA Law Review (Forthcoming) (Nov. 3, 2020).

The Sixth Amendment right to counsel is typically and often exclusively understood as a criminal procedure protection. From the law school training of attorneys to the legal knowledge imparted to lay people by popular culture, this right is seen as solely within the province of the criminal justice system. This widely held belief is fragmentary and incomplete. Despite its reasonableness, this penal primacy has marred our ability to understand the contours and limitations of indigent defense.

Article: Human Rights, Economic Justice and U.S. Exceptionalism

Article: Natasha Lycia Ora Bannan, Human Rights, Economic Justice and U.S. Exceptionalism, 31 Pace Int’l L. Rev. 563 (2019). First paragraph below:

While the human rights framework recognizes all rights as inherently interrelated and necessary to the full realization of a dignified life, economic justice—as it’s litigated at least—is often forced to stand on its own, reduced to a “benefit” or “entitlement” and isolated from the larger context to which its demands are linked. Yet, when working with immigrant communities or communities of color, there can be no demands of justice that do not also address systemic economic inequalities that have been built into our economic, political and legal systems by design.

New Article: Preventing Trafficking Through New Global Governance Over Labor Migration

New Article: Janie A. Chuang, Preventing Trafficking Through New Global Governance Over Labor Migration, 36 Ga. St. Univ. L. Rev. 1027 (2020). First paragraph below:

The year 2020 marks the twentieth anniversary of the United Nations (U.N.) Trafficking Protocol—a treaty that established the foundation for global efforts to address the problem of human trafficking. That treaty offered an early framing of the problem as a transnational crime, best addressed through aggressive prosecution of traffickers and international cooperation to that end. Since the Protocol’s adoption, global antitrafficking law and policy have evolved significantly. The once near-exclusive focus on the prosecution prong of the treaty’s “3Ps” approach to trafficking— focused on prosecuting trafficking, protecting trafficked persons, and preventing trafficking—has given way to an increased emphasis on victim protection. Prevention, however, remains the 3Ps’ most neglected prong. Prevention efforts have narrowly focused on public awareness campaigns to warn vulnerable populations, as well as potential consumers of trafficked goods and services, of the risks and many manifestations of human trafficking.

New Article: Connecting Past and Present: Central America’s Forced Migration as an Unfinished Project of Building Just Nations Post-Colonization and Post-Conflict

New Article: Aldana, Raquel E. and Mancilla, Mario René and Mogollón, Luis, Connecting Past and Present: Central America’s Forced Migration as an Unfinished Project of Building Just Nations Post-Colonization and Post-Conflict (May 27, 2020). UC Davis Legal Studies Research Paper Forthcoming. Abstract below:

In this white paper, we aim to explicitly connect today’s Central America’s forced migration phenomena to the broader largely failed project of liberating the people from the Northern Triangle from the terrible grip of failed nations. We do this despite the obvious: neither civil wars nor incredibly ambitious peace processes have been terribly successful to help these nations transition to stronger and just democracies. The risk is great that we will fail to provide viable solutions to the Central American forced migration phenomena. We feel strongly, however, that our frame must embrace the complexity of forced migration’s root causes in the region and at least try to take up the daunting task of offering solutions that aim to innovate while at the same time contextualize a project of building just nations post-colonization and post-conflict that has been going on for more than a century.

We proceed in three parts. First, we provide a framework for understanding the concept of failed nations in Central America, with a particular focus in the Northern Triangle. Second, we provide a brief account of the heroic and monumental post-conflict nation-building efforts in the Northern Triangle, both the gains and unfinished tasks, to contextualize the recommendations that follow in Part III. In part III, we attempt to modernize a vision for building just nations in the Northern Triangle by (1) providing prescriptions that, inter alia, deemphasize, at least in the short term, the role of federal nation states in favor of more decentralized solutions that include local governments and communities (2) include important cross-border solutions that account for the ever present transnational agency of the problems in the region and (3) take up issues, both old and new, through evolving frameworks connecting human rights to sustainable development.

New Article: Vulnerability and Social Justice

Fineman, Martha Albertson, Vulnerability and Social Justice (March 14, 2019). Forthcoming in 53 Valparaiso University Law Review, 2019. Abstract below:

This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of liberal legal thought with the vulnerable subject, should be used to define the contours of the term. Recognition of fundamental, universal, and perpetual human vulnerability reveals the fallacies inherent in the ideals of autonomy, independence, and individual responsibility that have supplanted an appreciation of the social. I suggest that we need to develop a robust language of state or collective responsibility, one that recognizes that social justice is realized through the legal creation and maintenance of just social institutions and relationships.

Article: Migration as Decolonization

Article: E. Tendayi Achiume, Migration as Decolonization, 71 Stan. L. Rev. 1509 (2019). Abstract below:

International migration is a defining problem of our time, and central to this problem are the ethical intuitions that dominate thinking on migration and its governance. This Article challenges existing approaches to one particularly contentious form of international migration, as an important first step toward a novel and more ethical way of approaching problems of the movement of people across national borders.

The prevailing doctrine of state sovereignty under international law today is that it entails the right to exclude nonnationals, with only limited exceptions. Whatever the scope of these exceptions, so-called economic migrants—those whose movement is motivated primarily by a desire for a better life—are typically beyond them. Whereas international refugee law and international human rights law impose restrictions on states’ right to exclude nonnationals whose lives are endangered by the risk of certain forms of persecution in their countries of origin, no similar protections exist for economic migrants. International legal theorists have not fundamentally challenged this formulation of state sovereignty, which justifies the assertion of a largely unfettered right to exclude economic migrants.

This Article looks to the history and legacy of the European colonial project to challenge this status quo. It argues for a different theory of sovereignty that makes clear why, in fact, economic migrants of a certain kind have compelling claims to national admission and inclusion in countries that today unethically insist on a right to exclude them. European colonialism entailed the emigration of tens of millions of Europeans and the flow of natural and human resources across the globe, for the benefit of Europe and Europeans. This Article details how global interconnection and political subordination, initiated over the course of this history, generate a theory of sovereignty that obligates former colonial powers to open their borders to former colonial subjects. Insofar as certain forms of international migration today are responsive to political subordination rooted in colonial and neocolonial structures, a different conceptualization of such migration is necessary: one that treats economic migrants as political agents exercising equality rights when they engage in “decolonial” migration.