Double Counting in Capital Sentencing Statutes

Download the PDF

Sunayna Nair, J.D. Candidate 2025, Columbia Law School

Citation: Sunayna Nair, Note, Double Counting in Capital Sentencing Statutes, 56 COLUM. HUM. RTS. L. REV. 252 (2025).

The Supreme Court’s narrowing requirement emerged from concerns in Furman v. Georgia (1972) that the death penalty was being implemented in a manner that was arbitrary, capricious, and discriminatory. For many states that continue to exercise the death penalty, the narrowing requirement is satisfied by statutory aggravating factors designed to limit the death-eligible class to the most heinous offenders.

This Note identifies a problem in the construction of statutory aggravating factors that has been severely overlooked and endures today: double counting. Double counting occurs when the statutory aggravating factors duplicate elements of the capital offense. In this context, a finding of guilt can mean an automatic finding of an aggravating factor, resulting in an automatic or mandatory death sentence. This Note contends that the persistence of double counting is due to a misinterpretation of Lowenfield v. Phelps (1988). This Note supports this contention through a comprehensive analysis of state supreme courts’ and lower federal courts’ approaches to upholding the practice of double counting. Finally, this Note provides a strategy to prevent the unconstitutional practice of double counting and to successfully enforce the narrowing requirement.

Children’s Privacy and the Ghost of Social Media Past

Download the PDF

Shreya Agarwala, J.D. Candidate 2025, Columbia Law School

Citation: Shreya Agarwala, Note, Children’s Privacy and the Ghost of Social Media Past, 56 COLUM. HUM. RTS. L. REV. 298 (2025).

A picture is worth a thousand words… or likes, or dollars. But is it worth a child’s dignity? Social media’s youngest stars, or kidfluencers, grow up in the eyes of the public. As their parents engage in sharenting—posting one’s child on social media—the kidfluencers lose their privacy, their capacity to create their own reputation, and even their online safety. This Note examines how to provide redress to former kidfluencers whose privacy was traded for social media likes. Part I covers the basics of sharenting and reputation-based law. Part II then covers the problems in regulating sharenting, both in theory and with current proposals. Finally, Part III proposes a new reputational and privacy tort framework that would allow kidfluencers to regain some control over their image.

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Download the PDF

Vanessa Ann Racehorse, Associate Professor of Law, University of Colorado Law School

Citation: Vanessa Ann Racehorse, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, 56 COLUM. HUM. RTS. L. REV. 183 (2025).

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and Education Assistance Act of 1975, that have facilitated greater Tribal control over programs and services for Tribal communities, including health systems. Tribally managed health systems can, and are, playing a crucial role in closing this health gap.

This Article also positions the status of Native communities in the United States within the global dialogue on the right to health, as Indigenous Peoples in settler colonial states are demonstrably experiencing similar disparate outcomes. This discussion includes background on the international legal framework for the right to the highest attainable standard of health, the rights of Indigenous Peoples, and the social determinants of health, some of which are arguably unique to Indigenous communities. The Article explores these concepts for the lessons that may be garnered for the benefit of Tribal health systems. It also argues that Tribes that are successfully operating healthcare systems have their own lessons to offer the global community in providing quality care and bringing American Indian and Alaska Native communities closer to actualizing the highest attainable standard of health.

Loper Bright and the Great Writ

Download the PDF

Anthony G. Amsterdam, University Professor Emeritus, New York University School of Law

James S. Liebman, Simon H. Rifkind Professor, Columbia Law School

Citation: Anthony G. Amsterdam & James S. Liebman, Loper Bright and the Great Writ, 56 COLUM. HUM. RTS. L. REV. 54 (2025).

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants’ claims.

How can this be? Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.

This is obviously wrong. Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply. Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.

Constitutional text and history make the wrongness even clearer. The Framers wrote the Constitution precisely to quell the “violence of faction” that the States exhibited under the Articles of Confederation. They understood faction to produce “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.” So the Framers resolved to bind “the judges in every State” to treat the Constitution as the “supreme Law of the Land”; and the Framers gave federal judges—protected by life tenure and irreducible salaries—the “judicial Power” to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions. Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789–1914) and/or habeas corpus (1867–today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress’ or state courts’ reasonable-but-wrong constitutional judgments as “treason to the Constitution.”

New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect “small” businesses and “the citizenry” against politics and special interests. The test of their bona fides is whether they will take the same course in cases of individuals like William Packer and Joshua Frost, both convicted and sentenced to prolonged imprisonment through “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.”

The Readmission Acts: Reconstruction’s Forgotten Voting Rights Statutes

Download the PDF

Alon Goldfinger, J.D. Candidate 2025, Columbia Law School

Citation: Alon Goldfinger, Note, The Readmission Acts: Reconstruction’s Forgotten Voting Rights Statutes, 56 COLUM. HUM. RTS. L. REV. 1 (2025).

After the Supreme Court’s decision in Richardson v. Ramirez, many believed federal protection against state felony disenfranchisement laws to be dead. However, recently, several litigators in Virginia have revived a set of old, Reconstruction-era statutes to argue that the federal judiciary not only can, but must, curb current felony disenfranchisement practices. Lost to history, this set of statutes, called the Readmission Acts, conditioned all but one of the former Confederate states’ readmissions on the prospect that those states limit future disenfranchisement to “now felonies at common law.”

This Note serves as a first-of-its-kind analysis of the Readmission Acts, sifting through 242 pages of legislative history to shine light on their meaning. First, it traces the history of felony disenfranchisement from Reconstruction until today. It then examines the Acts more specifically, pointing out the powers that Congress could have relied on to pass the Acts, conducting a statutory interpretation analysis to decipher their meaning, and outlining various remedies that courts can pursue for violations of the Acts. Finally, this Note will address some of the arguments against enforcing the Acts, responding to critiques related to the political questions doctrine, sovereign immunity, federalism more broadly, and the equal state sovereignty doctrine. When discussing the equal state sovereignty doctrine, this Note will uplift statements from the Reconstruction Congress that highlight the current Court’s misalignment with the goals of Reconstruction.

Reconstruction wholly changed the nature of the United States legal system. The Acts are a further reflection of that legacy. In addition to changing the landscape of felony disenfranchisement laws in the United States, these Acts also speak to the Reconstruction Congress’s view on federalism, one that the Supreme Court has seemingly abandoned in its current jurisprudence. This Note argues that the Readmission Acts could and should be leveraged to combat modern disenfranchisement.

The Chamber of Secrets: The Death of Judicial Review of State Secrets

Download the PDF

Ann Murphy, Professor, Gonzaga University School of Law

The United States Supreme Court recently decided a case involving a man nearly tortured to death at the hands of the United States government. For years, the executive branch made pronouncements that it must keep information from litigants due to state secrets. The Court has always scrutinized these pronouncements. Until now. In the Zubaydah case, the Court dismissed a torture survivor’s quest for justice. But it did not stop there. The opinion followed years of cases dismissed based on the state secrets privilege and effectively announced that the courts will not review claims made by the executive in certain situations. Despite the compelling needs of the litigant, the Court instead walked in lockstep with the executive branch and dismissed the claim entirely. This action is akin to the invocation of the Crown Privilege as it existed in England from the 15th Century until 1968. This decision will undoubtedly cause executive branch overreach. Without the judicial check on the unilateral actions of the Central Intelligence Agency and other secretive departments within our government, abuse will continue. Americans require a transparent view of their government for effective democracy. The State Secrets Protection Act previously introduced in Congress is a critical fix to remedy the Court’s acquiescence to executive branch decision making.

No One Should Be Forced to Sleep Outside: Ending Discrimination Against People With Disabilities in Temporary Shelters

Download the PDF

Emma Alzner, J.D. Candidate 2024, Columbia Law School

Nationwide, the number of individuals that lack access to housing is increasing. At the same time, local governments have escalated efforts to criminalize the unsheltered. Given this context, access to temporary shelters has become a critical component of addressing issues surrounding houselessness. However, not all groups have equal access to temporary shelters. Disabled people face significant barriers to accessing shelter systems, frequently forcing them to sleep outdoors. This Note seeks to highlight the discrimination faced by people with disabilities in temporary shelters, explain why our current legal regime has failed to protect against the types of discriminatory behaviors shelters frequently engage in, and explore potential solutions to this problem. Specifically, this Note proposes utilizing the Affirmatively Furthering Fair Housing mandate to stop discrimination by shelters. Establishing access to temporary shelters is neither a solution to houselessness nor a solution to housing discrimination against disabled people in general. Still, ensuring that all individuals can reside in shelters if they so choose is a critical intermediary step, particularly in light of the increasingly inhumane consequences that individuals may face by remaining unsheltered, including criminalization, health risks, and in some places, forcible commitment.

Resolving What is a “Forced” Abortion and Sterilization Procedure Under Section 601(a) of the IIRIRA: Expanding Asylum Eligibility Beyond China’s One-Child Policy to Protect Marginalized Women

Download the PDF

Karla Colley, J.D. Candidate 2024, Columbia Law School

The United States Congress enacted Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 to protect asylum seekers fleeing China’s One-Child Policy (OCP). Such Chinese asylum seekers have primarily utilized the statute to secure asylum grants on the grounds of being subjected to a forced sterilization or forced abortion. However, while the world is familiar with China’s now defunct OCP, researchers have shed light on a lesser-known practice—the global prevalence of involuntary sterilization by medical providers, both forced and coerced, targeting marginalized women. The published case law’s focus on involuntary sterilization within the context of the OCP raises questions of whether the statute provides equal protection to asylum seekers who were subjected to sterilization outside of China and without a similar government-stipulated policy. This Note explores three groups of marginalized women who are often targeted for involuntary sterilization, as well as the circumstances under which they are forcibly and coercively sterilized. It analyzes how the Board of Immigration Appeals (BIA) and some circuit courts have defined what constitutes a “forced” sterilization or abortion within the context of the OCP. It also presents an analytical framework for why Section 601(a) extends to asylum seekers outside of China. Based on this framework, this Note further argues that attorneys and physicians should widely screen their female asylum clients for involuntary sterilization as a means of potentially securing an additional path, with a lower evidentiary burden, towards an asylum grant.

Protecting the Right to Boycott Israel: A Foreign Affairs Preemption Approach to Striking Down State Anti-BDS Laws

Download the PDF

Ariel Sheffey, J.D. Candidate 2024, Columbia Law School

Legal challenges against the constitutionality of state anti-Boycott, Divestment, Sanctions (BDS) laws are slowly making their way through United States circuit courts, and, so far, these challenges have rested largely on First Amendment grounds. This Note explores the viability of an alternative approach: challenging the constitutionality of state anti-BDS laws under the doctrine of foreign affairs preemption. Ultimately, this Note concludes that state anti-BDS laws pose a sufficient intrusion into foreign affairs so as to be rendered unconstitutional by the doctrine of foreign affairs preemption. Nonetheless, before pursuing this approach in court, litigators and advocates should consider how the precedent might implicate the goals of human rights activists in the long run, particularly regarding the abilities of state governments themselves to mobilize against foreign countries committing human rights violations.

Process [Ill]Defined: Immigration Judge Reviews of Negative Fear Determinations

Download the PDF

Jocelyn Cazares Willingham, Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law.

In 2023, the Biden Administration announced its plan to enhance the use of summary removals, which are administered and completed by low-level immigration officers without further process unless there is an articulated fear of return by the noncitizen. This fear articulation triggers a fear interview with an asylum officer who determines whether the noncitizen has a credible or reasonable fear of return—a process that the Biden Administration further shortened while effectively imposing a higher fear standard through a recent finalized rule. A negative fear determination results in immediate removal unless the noncitizen requests review by an immigration judge. In 2019, only 15,476 migrants subject to the fear screening process requested review of their negative fear determinations. In most of these reviews, 74.3 percent, the immigration judge affirmed the asylum officer’s negative fear determination, resulting in the humanitarian relief seeker’s deportation as the decision in these reviews is not subject to appeal or further review. This Article seeks to highlight how the lack of clear process in an immigration judge’s review of an asylum officer’s negative fear determination under 8 C.F.R. § 208.30(g) and 8 C.F.R. § 1208.31(g) leads to an unchecked judicial discretion that can serve as a barrier to justice and humanitarian relief for those fleeing severe harms in their countries of origin or removal. This Article presents the first sustained examination and critique of the immigration judge review process that grounds decisions to expeditiously return migrants. After a review of the literature on this corner of our immigration system, I present some rare insights into this immigration judge review process based on descriptive data collected from an accompanying national survey of immigration advocates with direct experience in these proceedings. I then argue that that the fear screening process in its current form is in violation of the United States’ international and domestic obligations and should be dismantled. The lack of clearly defined procedures and meaningful standards, and the vast discretion afforded to immigration judges in these proceedings result in egregious failures of both process and substance. In the current process, expediency is championed over accuracy—belying the pretense of humanitarianism and charity that cloaks the entirety of our system of humanitarian protection. Lastly, I present some suggestions for reform to minimize the risk of erroneous fear determinations and ensure a fairer process for all migrants—not just those who win the adjudication lottery by being assigned to an immigration judge who approaches review of asylum an officer’s negative fear determination as the migrant’s legitimate opportunity to be heard and questioned.

From Criminalizing China to Criminalizing the Chinese

Download the PDF

Leo Yu, Assistant Clinical Professor of Legal Writing, Research and Advocacy, Southern Methodist University, Dedman School of Law.

Many scholars have studied the racialization of Asian Americans and found that perpetual foreignness stands at the core of their ascriptive identity. This identity was formed in the 19th century and is also closely related to the dominant society’s racial understanding of ‘the Chinese’—which refers, for the purposes of this Article, to people of actual or perceived Chinese descent in the United States. This Article investigates this racialization process, with a contemporary lens: What does perpetual foreignness mean to the Chinese in the 21st century? This Article argues that, for the Chinese, their foreignness in today’s United States means more than just otherness, inferiority, and inassimilability; instead, the Chinese foreignness has acquired an additional specific meaning: the unquestionable linkage to China, the United States’ most significant geopolitical challenger. This Article uses the U.S. Department of Justice’s failed China Initiative to investigate this new ascriptive identity of the Chinese and argues that the geopolitical tension between China and the United States plays a vital role in this change. As the United States’ most significant challenger in geopolitics, China has taken a central role in the racial understanding of the Chinese in the 21st century. To many non-Chinese Americans, the Chinese are more than just foreigners who are culturally associated with a far away, inferior oriental country as they were perceived in the 19th and 20th centuries. Today, they are a suspect race who possess an unbreakable linkage to China, the dangerous perpetrator in geopolitics. In short, today, the Chinese are not just foreign; they are foreign perpetrators. This new ascriptive identity of the Chinese resonates with the differential racialization tenet of the Critical Race Theory that the dominant society racializes different minority groups at different times in response to shifting needs and interests. How the United States views China has a direct impact on how Americans views the Chinese. Since China will likely remain the United States’ geopolitical challenger, this Article predicts that the foreign perpetrator identity will be attached to the Chinese community in the foreseeable future.

Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs

Download the PDF

Ebba Brunnstrom, J.D. Candidate 2024, Columbia Law School

 18 U.S.C. §§ 1461 and 1462, originating in the Comstock Act of 1873, prohibit the mailing and importation of any abortion-related material within the United States. Whatever protection there was against the application of these laws by the government and private individuals from the constitutional right to an abortion was overturned by Dobbs v. Jackson Women’s Health Organization in 2022. Recent trends from the last year show that conservative lawmakers are now eager to start enforcing the Comstock Act mailing prohibitions; some are relying on the existence of these century-old laws to justify new abortion restrictions. Pushback from the Biden Administration’s Office of Legal Counsel suggests that a limiting construction should be read into the Comstock Act statues so that the prohibition on mailing would apply only to “illegal abortions.” This Note engages with the enforcement history of the statutes and criticism of OLC’s interpretation to ultimately conclude that the Comstock Act Laws are unenforceable because they are unconstitutionally vague. In doing so, this Note advances a conception of the void for vagueness doctrine that would place greater emphasis on enforcement and fair notice considerations. 

Download the PDF

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

Moral Accommodations: Tolerating Impairment-Related Misconduct under the Americans with Disabilities Act

Download the PDF

Adi Goldiner, Postdoctoral fellow, Edmond J. Safra Center for Ethics, Tel Aviv University.

People with disabilities sometimes have impairments that manifest in unacceptable and disruptive behavior, such as inappropriate language, angry outbursts, and conflict-generating harassment. Such behavior, which I call “impairment-related misconduct,” often leads to exclusion from work or public places. Notwithstanding the Americans with Disabilities Act’s goal of promoting the full and equal social participation of disabled people, legal challenges to those exclusionary responses have generally failed.

Using cases involving employees with Borderline personality disorder, this article criticizes this outcome as grounded in a conceptual conflation of duty and sympathy, which in turn arises from a tragic view of disability. It also offers an original approach to resolving these cases. Specifically, this article develops a novel category of reasonable accommodations for persons with disabilities. I call them “moral accommodations.” These are duties to tolerate, to various degrees, unacceptable behavior related to an impairment. They involve, for instance, giving people second chances, reassigning them to different positions or service providers, or exempting them from certain rules of conduct. Establishing the theoretical foundations for this new category, I argue that, like other reasonable accommodations moral accommodations are plausibly grounded in various conceptions of justice, most notably egalitarianism and the “capabilities approach.” I also address potential objections, both pragmatic and philosophical. For example, although misconduct causes harm to others, I argue that moral accommodations are nevertheless justifiable. By expanding the duties owed to persons with disabilities, moral accommodations develop our conception of a just society as one in which inappropriate behavior is sometimes tolerated.

Download the PDF

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

Two Classes of Tribes: Unifying the State and Federal Recognition Systems

Download the PDF

Ama Lee, J.D. 2021, Harvard Law School; MAACT 2018; BSM 2018, Tulane University.

This paper seeks to analyze the historical and political outcomes of the federal recognition process within the Bureau of Indian Affairs (BIA) and suggests that the BIA should eliminate the continuous existence requirement from that process. This paper also suggests that the BIA should consider ratifying state tribal recognition through an alternative criterion rather than the federal acknowledgment process. Without taking action, the current structure of recognition fails the United States’ duties to its Indigenous population and underscores its role in extinguishing the continuous existence of many Indian tribes.

Download the PDF

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

The International Obligation to Counter Gender Apartheid in Afghanistan

Download the PDF

Karima Bennoune is the Lewis M. Simes Professor of Law at the University of Michigan Law School. From 2015–2021, she served as United Nations Special Rapporteur in the field of cultural rights. She conducted fact-finding missions in different regions of Afghanistan for Amnesty International in 1996 and 2005, and in her personal capacity in 2011.

Since they returned to power in August 2021, the Taliban are again imposing a regime of gender apartheid in Afghanistan in violation of international law, just as they did in the 1990s.  Given that it is pervasively discriminatory, gender apartheid poses specific human rights problems requiring particular, heightened responses. A system of governance based on subordination of women institutionalizes sex discrimination across state political, legal, and cultural infrastructures. It necessitates different counter-strategies.

This Article suggests conceptual architecture for analyzing and responding to this aspect of the current Afghan crisis.  Specifically, the robust international legal framework that helped end racial apartheid should be urgently adapted to address gender apartheid and concert the responses of other states to it. 

There are three principal arguments in favor of this approach. 1) It is essential for fulfilling states’ international legal commitments on sex discrimination across every document in the International Bill of Human Rights, as well as the specific target they affirmed in the Sustainable Development Goals to achieve gender equality by 2030. 2) Any other stance leads to an unacceptable imbalance in the manner in which international law addresses discrimination on the bases of sex and race. 3) This may be the only way to effectively tackle systematic Taliban abuses, as the organization is deeply committed to its violations of women’s rights and already sanctioned by the United Nations Security Council. Such an approach marshals the resources of the international community to constrain the Taliban, and is the best hope for ensuring the credibility, legitimacy and effectiveness of the international legal response.

Download the PDF

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

Confronting State Violence: Lessons from India’s Farmer Protests

Download the PDF

Smita Narula, Haub Distinguished Professor of International Law, Elisabeth Haub School of Law at Pace University

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored ecological and economic violence that have relegated millions of Indian farmers to a state of precarity and desperation. I further argue that the protests hold key insights for social movements around the globe, and for the future of food in India and beyond.

The Article analyzes the farmers’ protests using a four-part paradigm to assess contemporary movements for social change: Roots, Resistance, Reform, and Reconstruction. In so doing, it makes several contributions to legal scholarship. First, it makes visible the lived realities of India’s rural masses who have been left behind amidst the country’s celebrated economic growth. Second, it reveals the many ways in which State violence manifests, and how that violence is mediated through agricultural policies. Third, it demonstrates the power of mass nonviolent resistance as a strategic tool to confront State violence. And fourth, it explores the tension between reform and revolution. I argue that the farmers’ reformist demands do not sufficiently address the ecological harms and caste-based inequities that underpin India’s agrarian crisis. But the movement’s building of broad-based alliances across caste and class has opened the door to more transformative change.

Download the PDF

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all

There Is No Such Thing As A “Legal Name”

Download the PDF

Austin A. Baker is a Postdoctoral Assistant Professor at the Rutgers Center for Cognitive Science (RuCCS) and holds a Ph.D. in Philosophy from Rutgers University, New Brunswick.

J. Remy Green teaches at Boston University School of Law and Baruch College at the City University of New York. They are a founding partner at Cohen & Green P.L.L.C. They hold a J.D. from the University of Chicago Law School.

The phrase “legal name” appears everywhere. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear no.

This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal” name is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality. To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities.

Download the PDF

More H.R.L.R.

Double Counting in Capital Sentencing Statutes

Sunayna Nair

Children’s Privacy and the Ghost of Social Media Past

Shreya Agarwala

Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives

Vanessa Ann Racehorse
See all