Let Them Eat Paint: Childhood Lead Paint Poisoning as the Denial of Constitutional and Civil Rights

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Hope Kerpelman is a member of the Columbia Law School Class of 2020.

Over forty years ago, the United States federal government banned the use of lead-based paint in residences. Yet, tens of millions of American homes still contain lead paint today—exposing huge numbers of children to a grave risk of irreversible brain damage. While most Americans are familiar with the devastating 2014 crisis caused by lead-contaminated water in Flint, Michigan, few realize that Flint is only a small piece of a much larger lead poisoning problem. In thousands of towns across the United States today, children suffer elevated blood lead levels at even greater rates than those observed in Flint. In many cases, the cause of lead exposure for these children is not water, but paint.

A child living in a home with deteriorating lead paint can easily suffer life-long harm—just by breathing in invisible lead dust or touching lead-contaminated surfaces and later putting their hands in their mouth. Despite clear evidence of the serious consequences of lead since the early 1900s, however, the lead paint problem has festered in America’s shadows for over a century. Most recently, in the decades since the residential ban, landlords and sellers have refused to adequately test for and remove lead paint from their properties—and governments and regulatory agencies have failed to enact effective laws and enforce regulations.

Why has this crisis been allowed to continue for so long? History, empirical data, and anecdotal evidence all strongly suggest that America has ignored the issue largely because lead poisoning mainly affects low-income communities and people of color.

This Note argues that the current legal remedies used to address the lead paint epidemic are inadequate and have failed to fix a completely preventable public health crisis. In addition, it demonstrates that all of the existing approaches to lead poisoning—legislative reform, regulatory action, lawsuits sounding in common law negligence, and the use of market share liability and public nuisance doctrine—do not address the underlying issues of racial and economic discrimination that have perpetuated this problem for decades.

In order to ensure enforcement of federal and state laws, to legitimize the experiences of children who have suffered at the hands of discriminatory policies, and to garner national attention to the issue, this Note argues that advocates should expand their response to lead paint by pursuing claims under constitutional and civil rights theories. In particular, this Note analyzes how litigators can bring successful lead poisoning claims under the Fourteenth Amendment to the U.S. Constitution, the Fair Housing Act, and Title VI of the Civil Rights Act of 1964.

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Uganda’s Tax on Social Media: Financial Burdens as a Means of Suppressing Dissent

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Michael Altman-Lupu is a member of the Columbia Law School Class of 2020.

In response to political upheaval, African states have restricted access to social media platforms. In what appears to be the start of a regional trend, several East African nations have imposed taxes and fees on social media. Uganda has levied the world’s first tax on social media users, imposing in 2018 a daily tax on the use of fiftyeight websites and applications, including Facebook, Twitter, Instagram, WhatsApp, and Skype. To access these platforms, one must pay a daily fee of 200 Ugandan Shillings ($.054 USD).

This Note will use the Ugandan social media tax as a case study through which to examine the legality, under international law, of financial burdens designed to suppress political dissent. While the analysis will focus solely on Uganda’s law, much of it will apply beyond Uganda’s borders to countries pursuing similar legislation.

Part I provides important background with respect to the Ugandan scheme. Part II explores freedom of expression over the Internet under international law and determines what types of restrictions on expression are legally permissible. Part III analyzes whether a tax that affects speech would be considered a restriction of expression. Finally, Part IV examines the social media tax through the lens of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and analyzes the consequences of a determination that the social media tax violates international norms, both within Uganda and more broadly across East Africa.

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Lawyers for #UsToo: An Analysis of the Challenges Posed by the Contingent Fee System in Tort Cases for Sexual Assault

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Christine Rua is a member of the Columbia Law School Class of 2020.

According to the National Sexual Violence Resource Center, one in five women will be raped at some point in their lives, and one in three women will experience some form of sexual violence. Despite the widespread prevalence of sexual assault, it is the country’s most under-reported crime. These illustrative statistics are alarming and suggest that current criminal law approaches to the sexual assault epidemic are inadequate, both in meeting the needs of survivors and in holding perpetrators accountable. These inadequacies have the potential to become even more widely experienced in light of movements like #MeToo, given that survivors may now be more willing to come forward, seek support, and engage with the legal system. Given these realities, scholars have begun to explore alternatives to criminal prosecutions for sexual assault, and many have identified tort law as a potential alternative path. However, tort law is generally underused, despite its potential to provide sexual assault survivors with a variety of benefits. This Note aims to provide a structural explanation for why more sexual assault claims are not successfully pursued in tort. Specifically, this Note explores how the contingent fee system and tort reform may affect the frequency and type of sexual assault cases plaintiff-side lawyers are willing to accept and bring to trial. This Note draws on both quantitative data and informal attorney interviews to demonstrate how tort reform statutes influence attorney decisionmaking in sexual assault cases, and how attorney screening decisions in the aggregate may foreclose legal recourse for survivors in a way that is normatively undesirable. This Note then proposes changes to existing systems of criminal restitution in order to address the compensatory, retributive, and deterrence gaps created by the current legal scheme.

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Making Rights a Reality: Access to Health Care for Afro-Colombian Survivors of Conflict-Related Sexual Violence

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Deborah Zalesne is a Professor of Law at the City University of New York School of Law.

In 2008, Colombia enacted Law 1257, which states that “women’s rights are human rights,” and that women’s rights include “the right to a dignified life,” including the right to “physical health” and “sexual and reproductive health.” In 2016, the Colombian government signed a peace accord with the Revolutionary Armed Forces of Colombia (“FARC”), which included groundbreaking racial and gender justice provisions. In the years since, the government has failed to fully implement the accord’s protections against gender violence and has failed to rectify disparities in the availability, accessibility, and quality of women’s health services throughout Colombia. Indigenous and Afro-Colombian women in rural and remote areas have felt these failures more than anyone else. The intersection of race, class, and gender creates unique issues for AfroColombian victims of sexual violence, which can result in a complete lack of health care options. This Article spotlights the many structural barriers that Afro-Colombian women face in realizing their right to health and health care in Colombia. The Article draws heavily from conversations and interviews with Afro-descendant Colombian members of Proceso de Comunidades Negras (“PCN”) and community leaders and activists from the rural Pacific AfroColombian river communities of San Juan and Naya River. Part I of this Article gives a brief overview of the history of race discrimination and violence against women in Colombia and of the specific situation of Afro-Colombian women. Part II then gives an overview of the health care system in Colombia and the national health law, which guarantees health care as a right to all citizens, including free and compulsory basic health services. Part III details the many obstacles that cut off populations of Afro-Colombians from access to appropriate medical care altogether, despite the national guarantee of the right to health care. Finally, in the Conclusion, the Article proposes some basic responses to the deficits highlighted in Part III. To bring the provision of health services in line with the law’s mandate, policy makers must consider how the intersection of race, class, and gender uniquely affects Afro-Colombian victims of sexual violence. To obtain health equity, policy makers must address structural and institutional issues that cause the disparities.

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Unlocking the Power and Possibility of Local Enforcement of Human and Civil Rights: Lessons Learned from the NYC Commission on Human Rights

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Gurjot Kaur is Senior Policy Counsel at the NYC Commission on Human Rights.

Dana Sussman is Deputy Commissioner, Policy and Intergovernmental Affairs at the NYC Commission on Human Rights

If you ask most people in the United States where to go to file a complaint of discrimination or receive assistance from the government in addressing discrimination, chances are that they will not likely be able to tell you. For those who do have some familiarity, they may point to the United States Equal Employment Opportunity Commission (“EEOC”), the federal agency that handles workplace discrimination claims under Title VII of the Civil Rights Act of 1964. A smaller number may be familiar with their state human rights agencies or equivalent. Even fewer will have knowledge about local or city counterparts to the extent that these agencies even exist in their respective jurisdictions. While the federal government has certainly played a powerful and dominant role in furthering civil rights in the United States, the last several years have seen a rolling back of civil rights protections, through federal administrative rulemaking, Supreme Court jurisprudence, and executive orders and other mechanisms. Under the administration of President Donald J. Trump, the federal government has also flagrantly espoused rhetoric and policies that have led to an increase in bias incidents and violence across the country, inspired by a resurgent white supremacist movement.

When human rights and civil rights protections are deprioritized, underenforced, and undermined through federal action, local governments can be powerful incubators of new and innovative ideas for how government can protect its residents and also serve as a bulwark against the actions of the federal government This article proposes that local and state human rights agencies can and should prominently step forward to push the limits of their mandates, including: adopting a holistic and highly visible approach to combat discrimination in their jurisdictions; building relationships with advocates; steering the national conversation on civil rights; and continuing to create powerful legal precedents to protect society’s most vulnerable.

This article will focus on the strategies employed by the New York City Commission on Human Rights (the “Commission”) from 2015 to 2020 under the leadership of Commissioner and Chair Carmelyn P. Malalis, who helped revive a moribund agency and turn it into a national leader. The Commission’s progress during this timeframe has demonstrated that even with limited resources, a local human rights commission can play a prominent role in the civil rights movement.

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An Oasis in the Human Rights Litigation Desert? A Roadmap to Using California Code of Civil Procedure Section 354.8 as a Means of Breaking Out of the Alien Tort Statute Straitjacket

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Fernando C. Saldivar, S.J. is a Jesuit Scholastic and a candidate for the M.A. in Social Philosophy at Loyola University Chicago. He received an A.B. from Georgetown University in 1999 and a J.D. from Southwestern University School of Law in 2005. He was in private litigation practice in California from 2005 until he entered the Society of Jesus in 2016.

As a result of the Supreme Court’s increasingly restrictive reading of the Alien Tort Statute (“ATS”), victims of human rights abuses committed abroad have found the federal courthouse door sealed shut. Especially in the wake of Jesner v. Arab Bank, where the Court held that foreign corporations cannot be defendants under the ATS, such entities may feel they can act abroad with impunity, without fear of being held accountable in a U.S. court. However, the situation may not be anywhere near as dire as it may seem. Sitting quietly in California’s Code of Civil Procedure (“CCP”) since 2016, Section 354.8 opens the doors to the largest state court system in the country, offering a powerful, potentially game changing, tool to international human rights litigants who would otherwise be denied access to federal court under the ATS.

CCP section 354.8 expands the definition of certain torts under state law: assault, battery, wrongful death, and conversion. California law now substantively provides remedies to victims who can demonstrate that the underlying tortious conduct constitutes torture, genocide, a war crime, an attempted extrajudicial killing, or a crime against humanity. The legislative history indicates a clear intent to provide a judicial forum to those who may otherwise be denied access to the courts. This law is unprecedented, unique, and largely unknown to the international human rights community. This Article changes that by providing a roadmap for using California Code of Civil Procedure Section 354.8 as a means of breaking out of the federal ATS litigation straitjacket to pursue civil tort actions for human rights abuses committed abroad in a U.S. court.

This Article provides a primer on ATS caselaw as it has developed over the last thirty years, painting the picture of how the “ATS litigation straitjacket” came to be and thereby highlighting the novelty of California’s human rights regime. It then examines exactly what is authorized in CCP section 354.8, specifically the areas that have been the subject of protracted ATS litigation. Analyzing issues related to personal jurisdiction and court access, this Article provides a roadmap for navigating access to California’s state court system. The importance of California as a forum for international human rights litigation is discussed by showing how the state already has global influence, and its laws, particularly its human rights laws, already receive international recognition.

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The Law Against Family Separation

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Carrie F. Cordero is the Robert M. Gates Senior Fellow, Center for a New American Security and Adjunct Professor of Law, Georgetown University Law Center.

Heidi Li Feldman is Professor of Law and (by courtesy) Associate Professor of Philosophy, Georgetown University Law Center.

Chimène I. Keitner is the Alfred & Hanna Fromm Professor of International & Comparative Law, UC Hastings Law

This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, thenSecretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border. Kelly did not say upon what legal basis the administration could lawfully separate families at the border as a component of its immigration policies. Whatever the merits of maximal prosecution of adults unlawfully crossing the border, adopting this policy did not convert family separation into a lawful byproduct of the arrest of an adult. To the contrary, domestic and international law militates strongly against the lawfulness of family separation as a tool for immigration deterrence, yielding liability for the state and for individuals who implement family separation in this setting. Both litigation and Congressional action can and should play a role in addressing the Trump administration’s use of family separation and ensuring that it is halted now and not used again, by Trump or any other U.S. President.

In the Article, we start with a factual chronology of the Trump Administration’s family separation policy. We then argue for our positions regarding the illegality of the policy and its implementation. In Part II, we describe the federal government’s recognized authority to enforce immigration laws and ensure border security, on the one hand, and the domestic constitutional framework for protecting the basic rights of migrant parents and children, on the other. In Part III we examine the reach of domestic law, including the common law of torts, for dealing with wrongful family separation in the immigration setting. Part IV reviews international law that protects against this harm. In the Conclusion we propose a range of steps that the U.S. Congress could take to repair at least some of the harm caused by the family separation policy, and to ensure that no future administration contemplates similar action.

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The Right to Insult in International Law

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Amal Clooney is a barrister at Doughty Street Chambers and a Visiting Professor at Columbia Law School.

Philippa Webb is a barrister at 20 Essex Street Chambers and Reader (Associate Professor) in Public International Law at King’s College London.

States all over the world are enacting new laws that criminalize insults, and using existing insult laws with renewed vigour. In this article, we examine state practice, treaty provisions, and case law on insulting speech. We conclude that insulting speech is currently insufficiently protected under international law and regulated by confused case law and commentary. We explain that the three principal international treaties that regulate speech provide conflicting guidance on the right to insult in international law, and the treaty provisions have been interpreted in inconsistent ways by international courts and United Nations bodies. We conclude by recommending that international law should recognize a “right to insult” and, drawing on US practice under the First Amendment, we propose eight recommendations to guide consideration of insulting speech in international law. These recommendations would promote coherence in international legal standards and offer greater protection to freedom of speech.

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Cultural Heritage Protection and Sacred Spaces: Considering Alternative Approaches from Within the Human Rights Framework

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Leonard Hammer (B.A., J.D., LL.M., Ph.D) lectures at Hebrew University, Israel, and the University of Arizona, United States.

In many respects, the international system fails to protect cultural heritage. Both in times of warfare and civil strife and in times of peace, existing avenues for cultural heritage protection do not always succeed at preserving important cultural heritage sites. Even when the international community seeks to protect cultural heritage through judicial oversight, the effort is usually ex post facto and thus too late to actually preserve the destroyed cultural heritage. Challenges to cultural heritage protection are exacerbated considering that sacred spaces might not solely be a focus for preservation, but also include notions of use and protection given the spiritual significance of the site itself. Sacred space protection not only aims to preserve cultural property for the welfare of humankind writ large, but also considers the use of such space for religious practices or pilgrimages and seeks to ensure the preservation of a holy site on behalf of a particular group given its spiritual connection to a space. The unique nature of sacred space further suggests that it merits some form of international protection beyond what is available under the current cultural heritage regime. This Article will analyze potential sources for sacred space protection under the cultural heritage protection regime, noting some of the problems created by the current framework and the challenges they present for sacred space protection. The Article will then offer a potential source for protection of sacred spaces based on the international human right to freedom of religion or belief, pursuant to the current interpretation accorded to the right. Previous attempts to use the freedom of religion to protect sacred space have relied on the right when the use of the sacred space is part of a mandated and necessarily manifested religious act or when the sacred site is used by indigenous peoples. The interpretation of the right to freedom of religion or belief in this Article embraces an emerging group approach that includes indigenous people and centers on defining the contours of a belief. It also reflects broader understandings emerging in international human rights bodies and tribunals. The Article also will incorporate into its analysis a social constructivist approach to human rights, whereby the socialization process of human rights may encourage reliance on the human right to freedom of religion or belief as a potential ground for long-term sacred space protection. Reliance on freedom of religion, as opposed to cultural heritage protection, provides a relevant and conceptually-aligned basis for sacred space protection that better encapsulates the interests and meaning of necessary protection.

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Consenting to Dispossession: The Problematic Heritage and Complex Future of Consultation and Consent of Indigenous Peoples

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Marina Brilman is a visiting fellow at the London School of Economics and Political Science, Latin America and Caribbean Centre. Ph.D. (London School of Economics and Political Science), LL.M. (University College London), Master of Laws (University of Leiden).

Consultation and consent of indigenous and tribal peoples are matters of human rights law that have given rise recently to a convoluted array of recommendations, regulations, legislation, and judgments of national and international institutions. Regardless of different understandings, the concepts of consultation and consent are usually understood as progressive and indicative of the crossing of an imaginary threshold between epochs. This Article is animated by the idea that, apart from the legal, social, and procedural complexities of design and implementation, the notions of consultation and consent are inherently problematic, thus compromising their progressive potential. This intuition is arguably present in most discussions on consent and consultation, but often remains implicit so as not to jeopardize proceedings or undermine the progressive character of the notions themselves. Since colonial times, these concepts have been employed in different ways. This Article argues that current vocabularies of consultation and consent may reinforce and “buy into” a problematic heritage that needs to be unearthed, made explicit, and amplified. If ignored, this heritage may come back to haunt the rules and procedures so meticulously developed. Consultation and consent are not prohibitive or preventive notions that necessarily deter harmful activities of states and companies. Rather, they are enabling and permissive notions that make such activities possible and give them apparent validity. In other words, consultation and consent present the perfect justification for the dispossession of indigenous peoples, rather than allowing for their recognition and empowerment. This Article does not offer a solution or redefinition that salvages these notions as unequivocally positive and progressive. This is impossible since consultation and consent already implicate both a legitimation of-and a resistance to-inequality. There are, of course, positive aspects to consultation and consent. For example, they play an important role in advocacy for indigenous peoples’ rights. However, anyone using the terms consultation and consent, whether to advance such rights or other interests, should be conscious of the historical, conceptual, and practical difficulties-difficulties that may be “imported” into any domain of application by their mere use.

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