Issue: 1 - Fall

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from rural communities in other countries. During litigation, the employers and the employers’ lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call “scorched border” tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States’ long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon.

This Article documents and critiques scorched border litigation tactics, drawing on a broad range of sources including a survey of practitioners who represent temporary foreign worker (“TFW”) plaintiffs, a collection of case histories, and a review of court rulings. We find that federal court litigation has already adapted to handle the complexities presented by these TFW cases, such as modifying the manner and location of a TFW plaintiff’s deposition. These types of adaptations are not new to experienced lawyers representing TFW plaintiffs and are regularly permitted by courts. However, these adaptations are often so far out of the litigation norm that defense lawyers seek to gain an advantage by creating costly and unnecessary disputes in a case.

The forced adaptation of the civil justice system to the COVID-19 pandemic, however, may open new opportunities for countering scorched border tactics. With courts now experienced in remote proceedings, what was the subject of ridicule or pushback by defense lawyers in TFW cases is suddenly the norm. A review of new pandemic-era federal court rules offers concrete prescriptions for federal district courts on how to proceed when an individual litigant does not reside in the United States. In so doing, we aim to ensure that the return of TFW plaintiffs to their communities of origin after their employment in the United States is over—as is required by the very programs that allow them to work here—can no longer be used by employers to block their access to justice.

Tea workers in Bangladesh, a workforce created by the indentured labor system under British colonialism and whose exploitation is maintained by existing laws, have been mobilizing against the threatened seizure of the land that they cultivate for sustenance in order to create a special economic zone to attract foreign investors. Because it was the government of Bangladesh, rather than a multinational corporation, that was threatening to forcibly acquire the land, the tea workers’ movement did not draw popular attention as a global labor and human rights struggle, revealing that marginalized communities often do not have any legal recourse to challenge their displacement where nation-states collaborate with global capital. Using the tea worker movement as a case study, this Article examines the ways in which national and international legal structures and economic policies facilitate the entry of global capital in subnational spaces, threatening the displacement of marginalized communities and creating further economic inequality. Further, this Article reveals how neither domestic law nor international human rights law is adequate to address these harmful impacts of globalization. Thus, it posits that international human rights lawyers must develop legal responses to counter the harmful impacts of globalization. Using a socio-legal research methodology, this Article explores the possibilities of legal responses from the ground up that articulate new human and labor rights for workers. Finally, this Article shows how the tea workers’ movement of Bangladesh offers valuable lessons to other marginalized communities who are impacted by globalization and provides possibilities for mobilization around an alternative vision of how our laws and economies can be organized.

In 2019, Apple’s CEO warned that contemporary business models, which are based on harvesting our personal data and monetizing everything we do online, violate our privacy and will eventually cause us “to lose the freedom to be human.” Others have taken this privacy concern a step further by questioning whether these business models undermine mental autonomy, i.e., the ability to think and form opinions. The burgeoning chorus of concerns has triggered a variety of high-profile calls to explore whether international human rights law protects against intrusions on the inner sanctum of one’s mind, particularly with respect to the business models of global platforms such as Amazon, Facebook, and Google.

This Article provides the first in-depth scholarly examination of the scope of the right to “hold opinions without interference,” which is enshrined in Article 19(1) of the International Covenant on Civil and Political Rights (ICCPR). Because it was generally assumed that this right to think and form opinions could not be violated, it has been overlooked to date, and there is little jurisprudence available to define its scope. In response to calls for scholarly engagement to help define this right, this Article examines the text of the ICCPR, its negotiating history, the works of respected jurists, and the views of the United Nations human rights machinery.

The Article concludes that the right to hold opinions without interference includes protection against disclosure of one’s opinions, manipulation in the forming and holding of opinions, and penalization for one’s opinions. The Article assesses how contemporary business models grounded in capturing our attention, harvesting our personal information, and then monetizing that information may infringe this right. Using the corporate responsibility framework embodied in the U.N. Guiding Principles on Business and Human Rights, the Article concludes by recommending paths forward to promote respect for the right to hold opinions without interference in the digital age.

As housing-related decisions are increasingly being made by algorithms instead of individuals, it is critical that the technologies used to make those decisions do not replicate or even worsen patterns of discrimination and segregation. While it may be convenient to believe that bias can be eliminated by putting decision-making authority in the hands of machines instead of people, studies have shown that technologies such as algorithms and machine learning are often infected with bias.

Provisions of the Fair Housing Act (“FHA”) and its accompanying regulations that protect individuals from discriminatory algorithms are under attack from the Department of Housing and Urban Development (“HUD”), the agency responsible for enforcing the FHA. In particular, HUD recently issued a proposed rule that, if enacted, would undermine disparate impact jurisprudence and specifically exempt many housing providers who rely on algorithms developed by third parties. With the FHA under attack from the agency charged with its enforcement, it is particularly important to study how technological advancements might be used to either improve or undermine the law’s effectiveness.

This article describes the advent of big data, algorithmic decision-making, and machine learning, as well as HUD’s recent proposal to specifically immunize housing providers who rely on algorithms from disparate impact liability. It then discusses how the use of big data and algorithmic decision-making has touched all parts of the rental housing market, from advertising to tenant selection processes. Finally, it offers policy prescriptions that could help mitigate the discriminatory impacts of algorithmic decision-making in ways that are aligned with the FHA or, in some cases, that reach further than the protections currently offered under the FHA.

This Article demonstrates that the introduction of austerity measures does not contribute to economic recovery, but instead has negative consequences in terms of economic growth, debt ratios, and equality, and routinely results in a series of negative human rights impacts. There is therefore a solid legal basis to make the case for a prima facie inconsistency between the imposition of austerity policies in times of recession and the enjoyment of human rights.

Because of the circumstances in which States usually find themselves when seeking assistance from international financial institutions, lender institutions often impose conditionalities that have not necessarily been negotiated with borrower States. States’ populations are even less involved than their governments in the associated consultations, discussions, or negotiations. The broad scope of such conditionalities, which has been continuously expanded over recent decades, helps to explain their pervasiveness and omnipresence in key sovereign businesses. These conditionalities are even seen in the context of the COVID-19 pandemic.

According to standards of international law, international financial institutions may be held responsible for complicity in the imposition of economic reforms that violate human rights. The causal link between the assistance provided by international financial institutions (in the form of loans, surveillance and technical assistance, and attached conditionalities) in the commitment of an internationally wrongful act (complicity) and the harm done (human rights violations) is evident and well documented. An institution’s knowledge of the wrongful nature of the act can be presumed if, even when advancing the implementation of economic reforms that normally lead to human rights violations, no ex ante impact assessment is undertaken. Legal responsibility for complicity raises obligations in terms of cessation, non-repetition, and reparation.

Modern discourse on the Genocide Convention focuses primarily on cases of mass murder characterized by the overt targeting and persecution of a protected group, with the genocides in Rwanda and Bosnia serving as the contemporary paradigms. Notably, however, only one of the five provisions in Article II of the Convention, which defines the acts that constitute genocide, addresses mass killings. Of particular relevance, the “conditions of life” provision, Article II(c), has been neglected in scholarship and doctrinal development, ultimately falling out of the scholarship on genocide. As a result, numerous atrocity crimes have been relatively ignored over the last half-century that the Convention has been in force, even when they warranted scrutiny or preventive action by the international community.

This Note aims to address the currently narrow application of the Convention by reviving Article II(c). It will analyze the intent and origin behind the Genocide Convention by surveying the negotiating history of the Convention and examining one of the first petitions submitted to the United States to enforce Convention obligations, as well as subsequent genocide case law, in order to uncover the legal history of Article II(c). From this history, this Note argues that since its inception, the Article II(c) provision has encompassed a robust right to health protection that has gone largely unrecognized in its current application. This Note then incorporates the original intent and understanding of Article II(c) into a framework that aligns with both the enumerated definition of genocide as well as any prevention obligations States hold under the Responsibility to Protect doctrine and the treaty itself. This framework is ultimately applied to the Uyghur Muslim Crisis in Western China to demonstrate how returning to the original protectionist scope of Article II(c) can assist practitioners and advocates in addressing atrocity crimes.

Kevin Zeich was nearly blind, battling terminal cancer, and unable to eat or walk when he filed for compassionate release from federal prison in 2015.^[2] Zeich, who was fifty-five at the time, had served twenty-four years of a twenty-seven-year non-violent drug sentence for distribution of methamphetamine. Though he had three years remaining on his sentence, prison doctors believed he had only eighteen months left to live.^[3] Upon being diagnosed with advanced bile duct cancer, Zeich applied for compassionate release three times. Zeich’s warden approved one of his requests, but federal Bureau of Prisons (“BOP” or “the Bureau”) officials overrode his approval and rejected his claim, arguing that his life expectancy was “indeterminate.”^[4] On Zeich’s fourth try, he was granted compassionate release. He died two days before he was set to head home.^[5]

Between 2013 and 2017, the Bureau of Prisons^[6] received 5,400 requests for compassionate release from people in federal prison^[7] but approved just 6% of them, taking an average of 141 days to make a decision.^[8] These delays proved deadly: 266 prisoners, nearly 5% of all applicants, died while waiting for the BOP’s answer.^[9] In 2013, a Department of Justice (“DOJ”) report found that the BOP lacked basic timeliness standards for reviewing initial compassionate release requests.^[10] The appeals process for individuals denied compassionate release was similarly unregimented: the Bureau failed to consider urgent or special medical circumstances in expediting appeals, even when applicants had life expectancies of less than one year.^[11] The DOJ report found that the appellate review process for compassionate release requests could take more than five months to complete.^[12]

Given these realities, scholars as well as government watchdog groups have long suggested that compassionate release would benefit from judicial oversight of BOP determinations.^[13] In particular, some scholars urged legislative reform to permit people in prison to seek direct review of their compassionate release claims before Article III courts.^[14]

On December 21, 2018, Congress empowered Article III judges to overrule the BOP’s compassionate release determination for the first time. The 116^th Congress passed and the President signed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (“the First Step Act” or “the FSA”), which included a number of significant changes to federal compassionate release.^[15] The FSA alters compassionate release in two ways: first, it gives prisoners the power to appeal the BOP’s denial or neglect of the prisoner’s request for a compassionate release directly to their sentencing court, providing federal district courts the ability to review and overrule BOP decisions for the first time.^[16] Second, the Act gives judges newfound discretion to grant release under a catch-all “other reasons” provision. Clemency experts have deemed the Act’s catch-all provision “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention”;^[17] indeed, scholars have yet to analyze how U.S. district courts are interpreting and applying the catch-all.

Though it is only in its second year, the Act’s changes to compassionate release have transformed federal prison resentencing. Nearly three times more defendants were granted relief in the first nine months of 2019 alone than in all of 2018.^[18] As of October 2020, approximately 1,800 federal prisoners have been granted compassionate release since the FSA’s passage, with the overwhelming majority coming from judicial approvals overturning BOP denials.^[19] Many district court judges have responded quickly to their new role under the Act, with some granting relief within just a few days of prisoners’ requests.^[20] The COVID-19 epidemic only heightened judicial responsiveness to compassionate release claims, with some judges taking extraordinary efforts, including bypassing time length and exhaustion requirements, in order to release prisoners more quickly.^[21]

Yet there is an emerging circuit split between the courts that construe this newfound discretion broadly and those that continue to grant compassionate release only in cases of terminal or debilitating illness.^[22] Moreover, the courts that construe their discretion more expansively (which this paper calls “Cantu courts”) continue to use the catch-all “other reasons” provision to grant relief.^[23] Cantu courts stand in marked disagreement with the courts construing their discretion narrowly (“Lynn courts”), which have continued to adhere strictly to preexisting policy guidance by federal agencies.^[24]

This Note examines the Cantu-Lynn doctrinal split and its implications for the United States’ federal prisoners. The analysis proceeds in three parts. First, Part I considers how the Act altered compassionate release by authorizing courts to engage in BOP oversight and to grant relief to deserving defendants. Part II examines the emerging circuit split concerning whether federal district courts have license to consider an expansive range of factors under the First Step Act. Part II then provides data on the key factors and judicial outcomes across U.S. courts evaluating compassionate release claims. Part III provides a close reading of the Act’s statutory text and builds off of Shon Hopwood’s historical research into “second look” resentencing, ultimately concluding that the Cantu approach to compassionate release criteria best serves Congress’s statutory intent in enacting the FSA. Finally, the Conclusion considers how the Cantu construction could reduce recidivism and promote rehabilitation among America’s federal prisoners.

1. * J.D. Candidate 2021, Columbia Law School. The author would like to thank Professor Daniel Richman and Professor Shon Hopwood, as well as the staff of the Columbia Human Rights Law Review for their thoughtful work on this piece. ↑
2. .  Christie Thompson, Frail, Old and Dying, But Their Only Way Out of Prison Is in a Coffin, N.Y. Times (Mar. 7, 2018), https://www.nytimes.com/
   2018/03/07/us/prisons-compassionate-release-.html (on file with the Columbia Human Rights Law Review). ↑
3. .  Christie Thompson, Old, Sick, and Dying in Shackles, Marshall Project (Mar. 7, 2018), https://www.themarshallproject.org/2018/03/07/old-sick-and-dying-in-shackles [https://perma.cc/J5QU-PCLG]. ↑
4. .  Id. ↑
5. .  How Much Compassion in ‘Compassionate’ Release?, WNYC Studios: The Takeaway (Mar. 19, 2018), https://www.wnycstudios.org/podcasts/takeaway/
   segments/despite-compassionate-relief-program-prisoners-find-little [https://perma.cc/MUR2-EYYU]. ↑
6. .  The BOP, with “over 163,000 people in [its] custody . . . is America’s largest jailer,” making its bureaucratic decisions and leadership particularly worthy of study. Keri Blakinger & Keegan Hamilton, “I Begged Them to Let Me Die”: How Federal Prisons Became Coronavirus Death Traps, Marshall Project (Jun. 18, 2020), https://www.themarshallproject.org/2020/06/18/i-begged-them-to-let-me-die-how-federal-prisons-became-coronavirus-death-traps [https://perma.cc/DZ6G-YS4P]. ↑
7. .  Although this Note focuses exclusively on federal compassionate release, state prisoners also have access to compassionate release through their parole systems, almost all of which include some provision for compassionate release of terminally ill defendants. See Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?, 3 Widener J. Pub. L. 799, 816–36 (1994) (reporting that, in a 50-state and federal survey, Russell found that the federal system is by far the most restrictive for ill prisoners). Because the First Step Act covered only federal reform, state prisoners’ experiences are not included in this analysis, though they represent the vast majority of those imprisoned in the U.S. today. ↑
8. .  Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., Off. of Legis. Aff., to Sen. Brian Schatz, at 1 (Jan. 16, 2018), https://www.themarshallproject.org/documents/4369114-1-2018-BOP-response [https://perma.cc/RZH3-XSZH]. ↑
9. .  Thompson, supra note 2, at 6 (presenting empirical findings). ↑
10. .  See Off. of the Inspector Gen., U.S. Dep’t Of Just., The Federal Bureau of Prisons’ Compassionate Release Program 27–29 (2013) [hereinafter DOJ, BOP Compassionate Release Program] (finding that the BOP does not consider “the special circumstances of medical compassionate release requests” in timeliness standards, and further concluding that the BOP does not consistently expedite the administrative review process, even when inmates had less than a year to live). ↑
11. .  Id. ↑
12. .  Id. ↑
13. . See, e.g., Press Release, U.S. Sent’g Comm’n, U.S. Sentencing Commission Approves Significant Changes to the Federal Sentencing Guidelines (Apr. 15, 2016), https://www.ussc.gov/about/news/press-releases/april-15-2016 [https://perma.cc/C75F-NMHD] [hereinafter April 2016 Sentencing Press Release] (“[T]he BOP has failed to use its authority to recommend compassionate release in the past. We encourage BOP to use its discretion consistent with this new policy so that eligible applications are reviewed by a trial judge.”). ↑
14. .  See, e.g., Paul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J.L. & Pub. Pol’y 833, 912–13 (2016) (suggesting that Congress “eliminate the provision barring a district court from considering a compassionate release petition unless the BOP has asked the court to consider it . . . [because] the recidivism rate for federal prisoners granted compassionate release is far lower than the rate for other federal inmates”). ↑
15. .  See Shon Hopwood, The Effort to Reform the Federal Criminal Justice System, 128 Yale L.J.F. 791, 795, 816–17, n.114 (2019). ↑
16. .  Families Against Mandatory Minimums, Compassionate Release and the First Step Act: Then and Now 3, https://famm.org/wp-content/uploads/Compassionate-Release-in-the-First-Step-Act-Explained-FAMM.pdf [https://perma.cc/PZH6-8SY3]. ↑
17. .  RJ Vogt, How Courts Could Ease the White House’s Clemency Backlog, Law360 (Aug. 29, 2019), https://www.law360.com/articles/1191991/how-courts-could-ease-the-white-house-s-clemency-backlog [https://perma.cc/733W-87LE] (reporting on the statement of Margaret Love, former U.S. pardon attorney and clemency expert). ↑
18. .  Oversight of the Federal Bureau of Prisons and Implementation of The First Step Act of 2018: Hearing Before the H. Judiciary Comm. Subcomm. on Crime, Terrorism, and Homeland Sec., 116th Cong. 23–25 (2019) (statement of Antoinette Bacon, Associate Deputy Att’y Gen.) (announcing that, as of October 2019, 109 prisoners had been granted compassionate release, compared to just 34 total in 2018); Dep’t of Just., Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk and Needs Assessment System (2019) (discussing the FSA’s impact in its first six months). ↑
19. .   The 1,800 number comes from two sources: DOJ reports for 2019 and the Marshall Project’s 2020 reporting. Press Release, Dep’t of Justice, Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (January 15, 2020) (announcing that, as of January 2020, “124 requests have been approved, as compared to 34 total in 2018.”); Keri Blakinger & Joseph Neff, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied, Marshall Project (Oct. 7, 2020), https://www.themarshallproject.org/2020/10/07/thousands-of-sick-federal-prisoners-sought-compassionate-release-98-percent-were-denied [https://perma.cc/YQG4-SL95] (“So far, more than 1,600 people have been let out on compassionate release since the start of the pandemic—many of them despite the bureau’s best efforts to thwart them.”); Off. of Sen. Dick Durbin, Durbin, Grassley Introduce New Legislation New, Bipartisan Legislation To Reform Elderly Home Detention And Compassionate Release Amid COVID-19 Pandemic (Jun. 23, 2020), https://www.durbin.senate.gov/newsroom/press-releases/durbin-grassley-introduce-new-bipartisan-legislation-to-reform-elderly-home-detention-and-compassionate-release-amid-covid-19-pandemic [https://perma.cc/5APJ-N48Y] (noting that “nearly all [compassionate release approvals have been] by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.”). ↑
20. .  Carrie Johnson, Seriously Ill Federal Prisoners Freed as Compassionate Release Law Takes Effect, NPR News (Mar. 15, 2019), https://www.npr.org/2019/03/15/703784886/seriously-ill-federal-prisoners-freed-as-compassionate-release-law-takes-effect [https://perma.cc/PSN6-M4JV]. ↑
21. . United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 U.S. Dist. LEXIS 70802, at *10–11 (D. Conn. Apr. 22, 2020) (granting relief despite prisoner’s failure to exhaust administrative requirements within the BOP because “the Court finds it has the discretion to waive the 30-day waiting period where strict enforcement would not serve the Congressional objective of allowing meaningful and prompt judicial review. The immediate case, where each day threatens irreparable harm to a uniquely susceptible defendant, calls for such a waiver.”); United States v. Decator, No. CCB-95-0202, 2020 U.S. Dist. LEXIS 60109 (D. Md. Apr. 6, 2020) (granting release on similar grounds); United States v. Colvin, No. 3:19cr179 (JBA), 2020 U.S. Dist. LEXIS 57962 (D. Conn. Apr. 2, 2020) (excusing failure to exhaust administrative remedies); cf. United States v. Field, No. 18-CR-426 (JPO), 2020 U.S. Dist. LEXIS 68655 (S.D.N.Y. Apr. 20, 2020) (noting that it cannot grant release outright due to failure to exhaust administrative remedies, but urging BOP to release prisoner outright because his preexisting conditions, including obesity, made him high-risk for COVID-19). ↑
22. .  See infra Section II.B. ↑
23. .  See infra Section II.A. ↑
24. .  See id. ↑

Mexican immigration authorities regularly illegally detain, disappear, and/or deport indigenous Mexicans and Afro-Mexicans after mistaking them for non-citizens in irregular migratory situations. This Note addresses one factor contributing to the illegal behavior of the Mexican National Migration Institute (the “INM”): the legal framework governing human rights and immigration in Mexico. This framework, which is widely dispersed across a number of legal sources, contradictory, and vague, provides the INM with vast discretion and little guidance to enforce migration control. This discretion in turn leads INM agents to rely on discriminatory, subjective characteristics to determine an individual’s nationality, such as skin color, facial features, language, accent, clothing, and even — in the words of an INM official — “smell.”

While the Mexican government has acknowledged and made some effort to address the INM’s illegal conduct, this Note asserts that these measures do not guarantee the end of systemic discrimination against Afro-Mexicans and indigenous Mexicans. Consequently, this Note recommends the design and implementation of reforms to the legal framework that are grounded in the four principles of evolutionary learning: contextualization, collaboration, accountability and transparency, and continuous improvement. These principles have been used to address similar problems of discretion and discrimination in the United States juvenile justice system. By applying them to the legal framework governing immigration and human rights, Mexican lawmakers can reform the inequities in the INM’s current processes.

This Note advocates for measures that, even if not adopted by the Mexican legislature or judiciary, can still be incorporated into reforms led by the INM itself, other governmental agencies, and/or international and domestic NGOs and nonprofits. In addition to drawing attention to a longstanding human rights crisis in Mexico, this Note also joins the lively debate on the problem of the street-level bureaucrat, in which scholars and experts address the ways that on-the-ground actors shape policy through their day-to-day interactions with the public.

Increased partisanship, single-party control of state governments, and the rise of technology and “Big Data” have allowed mapmakers to draw legislative district maps—both congressional and for state legislatures—that are uncompetitive and skewed in favor of one party.^[2] The resulting “extreme partisan gerrymandering” has left states like North Carolina, a traditionally purple state with contested statewide elections, with lasting effects on the partisan composition of its elected officials.^[3]

On June 27, 2019, the Supreme Court handed down its opinion in Rucho v. Common Cause, a set of consolidated cases arising out of partisan gerrymandering claims in North Carolina and Maryland.^[4] The Court held that partisan gerrymandering claims are nonjusticiable in federal court because they present a “political question” beyond judicial competences, deciding there is no “limited and precise standard” for evaluating such claims that is “judicially discernible and manageable.”^[5] The decision effectively shut the door on the justiciability of partisan gerrymandering in federal courts, leaving advocates to search for alternative judicial paths.^[6]

In the wake of Rucho, state courts may be the most viable path forward in partisan gerrymandering litigation. Several state courts have already seen successful challenges to partisan gerrymanders. In North Carolina^[7] and Pennsylvania,^[8] state courts struck down gerrymandered state maps under the state constitutions’ Free Elections Clauses. These clauses, found within many state constitutions, generally require that elections be “free,” “equal,” or “open.”^[9]

This Note argues that following Rucho, challengers to partisan gerrymanders should bring claims in state court under explicit prohibitions on partisan gerrymandering where they are available, and where not, under state constitutions’ Free Elections Clauses. Part I describes the phenomenon of “extreme partisan gerrymandering” and its consequences. Part II discusses the Supreme Court’s ruling in Rucho v. Common Cause, and how it has left redistricting litigants without legal recourse in federal courts. Part III argues that the solution to the problem wrought by Rucho is for voting rights advocates to bring claims in state court, particularly under state constitutions’ Free Elections Clauses.

1. * J.D. Candidate 2021, Columbia Law School; B.A. 2018, New York University. The author would like to thank Professor Richard Briffault for his guidance in writing this Note, as well as the staff of the Columbia Human Rights Law Review for their thoughtful work on this piece. She is also extremely grateful for the encouragement and input of her family and friends, and in particular thanks her parents, Shazia and Zeigham, for their unwavering support. ↑
2. .  Michael Li & Annie Lo, What Is Extreme Gerrymandering?, Brennan Ctr. for Just. (Mar. 22, 2019), https://www.brennancenter.org/our-work/analysis-opinion/what-extreme-gerrymandering [https://perma.cc/ED2B-VMQN]. ↑
3. .   Id. ↑
4. .  Rucho v. Common Cause, 139 S. Ct. 2484, 2484 (2019). ↑
5. .   Id. at 2502. ↑
6. . Adam Liptak, Supreme Court Bars Challenges to Partisan Gerrymandering, N.Y. Times (June 27, 2019), https://www.nytimes.com/2019/06/
   27/us/politics/supreme-court-gerrymandering.html (on file with the Columbia Human Rights Law Review) (“[T]he court closed the door on [partisan gerrymandering] claims.”). ↑
7. .  Common Cause v. Lewis, 2019 N.C. Super. LEXIS 56 (2019). ↑
8. .  League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737 (Pa. 2018). ↑
9. .  See infra Section ‎III.C. ↑

The United States asylum system offers the possibility of a safe haven to many individuals who have fled persecution in their home countries. Yet, often the complex system of immigration statutes and its multiple grounds for inadmissibility block the path of deserving asylum seekers. Under one of these grounds for exclusion, the “material support bar,” victims of terrorism are barred from asylum because they have provided “material support” to the very groups whose persecution they have escaped.

In 2018, the Board of Immigration Appeals issued a precedential decision in Matter of A-C-M-, holding that a woman forced to cook and clean for Salvadoran guerrillas under threat of death was ineligible for asylum in the United States because her actions constituted material support to a terrorist organization. This decision represents the culmination of a series of cases since the statute’s enactment that have broadened the definition of “material support.” This Note argues that the current interpretation of the material support bar is both untenable from a statutory interpretation perspective and unjust in light of asylum law’s purposes, and that the present system of discretionary waivers is inadequate to mitigate this problem.

In order to ensure that deserving victims of persecution remain eligible for asylum in the United States, this Note recommends that Congress and the courts take action. It proposes and evaluates several potential solutions: first, a legislative amendment to the relevant statute to add an explicit duress waiver and to clarify the meaning of “material support,” and second, judicial review of the Matter of A‑C‑M‑ decision.

This Note examines Title II of the Americans with Disabilities Act’s (“Title II”) effectiveness at protecting persons experiencing mental illness from being fatally shot by police officers. Since its adoption in the 1990s, federal courts have interpreted the Americans with Disabilities Act to provide varying levels of protection to persons experiencing mental illness. While some courts have interpreted Title II to require that police officers provide reasonable accommodations for an individual’s mental illness when effectuating an arrest, others have held that any such accommodation would be unreasonable. Although not required by any court, police departments throughout the United States have adopted programs such as the Crisis Intervention Team (“CIT”) training model to train police officers on how to best respond during encounters with persons experiencing a mental illness or mental health crisis. Using data derived from the Washington Post’s Fatal Force Database and a record of existing CIT training programs, this Note analyzes the effectiveness of Title II and the CIT model at protecting persons in mental health crisis from fatal police shootings. In particular, this Note explores whether the application of Title II to arrests alone, the widespread implementation of CIT programs alone, or the application of Title II to arrests in jurisdictions that implement CIT programs best protects persons in mental health crisis from fatal police shootings.

This Note places wartime activity in Syria such as real property seizures and mass demolition within the theoretical framework of urbicide. The wanton, widespread destruction and seizure of homes or public spaces in Syria is a distinct, intentional form of violence against the built environment of the country’s cities, one which is intended to forcibly impose an urban politics of separation and homogeneity. The Assad regime’s tactics in Syria and urbicidal conduct more broadly should not be seen as discrete destructive events—or even series of events—occurring during periods of direct hostilities, but ought to be interpreted expansively: as ongoing processes in which postwar reconstruction is not the solution to urban destruction but rather the continuation of such violence. A failure to account for the logic underlying urbicidal wars may result in post-conflict authoritarian practices of economic patronage and the selective recognition of property assets in ways that are themselves urbicidal in purpose and effect. This Note argues that current reconstruction orthodoxy and the international community’s focus on property restitution as a means to facilitate the return of refugees and internally displaced persons (“IDPs”) is misguided; “traditional” models of post-conflict property restitution fail to properly consider the linkages between methods of destruction and possibilities of future conflict, thus permitting urbicidal reconstruction and the persistence of authoritarianism.

As the planet continues to warm, climate-induced migration is poised to become a global crisis. For the most vulnerable geographies—most prominently, low-lying island states—climate migration poses an immediate and existential threat. Without substantial adaptation, the lowest-lying island states are predicted to be uninhabitable by mid-century, necessitating wholesale migration and jeopardizing cultural identity, independence, and sovereignty.

Vulnerability to climate change is fundamentally shaped not only by environmental conditions, but by pre-existing social and political realities. Throughout Oceania, colonial legacies have induced climate vulnerability and impede effective adaptation. Colonial histories have left most Pacific Island states without the resources and capacity to pursue the type of intensive adaptation that could enable their survival. Meanwhile, dominant narratives portray the loss of islands to rising seas as a foregone conclusion and climate migration as inevitable, further foreclosing possibilities for adaptation. This accepted loss of whole nations represents a continuing strand of colonial narratives that cast islands and their peoples as peripheral and, therefore, expendable.

Such colonial dynamics are no longer commensurate with modern commitments to equity, justice, and human rights. International law safeguards the ability of all peoples to exist and to maintain sovereignty and self-governance through the fundamental human right of self-determination. In repudiation of the structural injustices produced by colonialism, self-determination was first codified as a right vesting exclusively in colonized peoples and continues to carry special force with respect to decolonizing peoples today. Yet unless persistent colonial dynamics are challenged, climate migration threatens to permanently extinguish the self-determination of Oceanic states, reproducing and exacerbating past injustices. The fate of islands has global consequence. Currently on the frontlines of climate change, the situation in islands today foreshadows the future of other decolonizing geographies as climate impacts intensify.

This Article will suggest that decolonizing states can leverage colonial histories to protect their self-determination in light of climate change. Taking the Republic of the Marshall Islands—one of the island states most imminently threatened by climate change—as a case study, this Article will first share Marshallese perspectives demonstrating that migration is not an acceptable response to climate change. Next, this Article will advance a novel climate justice theory, connecting colonial conduct to the threat of climate migration to establish that international human rights and decolonization norms vest colonial powers with moral and legal obligations to assist their former colonies with self-determination-preserving adaptation strategies. Finally, this Article will concretize this theory, suggesting specific legal strategies that Marshallese and similarly situated communities might pursue.

Chile has been held up as a transitional justice success story. Emerging from a repressive dictatorship to democracy, it has made meaningful progress in grappling with brutal human rights violations through truth commissions and, more recently, criminal trials. Yet, the Chilean human rights prosecutions have a glaring hole. Courts have convicted scores of state agents for enforced disappearance, execution, and torture (or their equivalents in Chilean law at the time), but have failed to meaningfully address sexual violence crimes, even though almost all women detained by the regime were victims of some form of sexual violence, and many were raped. Recently, however, the issue seems to be gaining more judicial attention.

This Article explores the question why it has taken so long for Chilean courts to reach the issue of dictatorship-era sexual violence. The reasons include the “pacted” Chilean transition, deficiencies in Chilean criminal law and procedures on sexual violence, lack of resources for sexual violence prosecutions, normalization of violence against women, and the reluctance of survivors to come forward when the likelihood of success was exceedingly low. The Article also examines the confluence of cultural and legal forces—perhaps most importantly, feminist mobilization and greater judicial openness to international norms—that have given rise to recent attempts to litigate sexual violence. Ultimately, it seeks to draw lessons from the Chilean transitional justice experience for future domestic prosecutions for sexual violence in the context of mass atrocities.

In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that only unauthorized immigrants convicted of serious crimes would be prioritized for deportation, the Trump Administration has implicitly given ICE officers carte blanche to arrest unauthorized immigrants anytime, anywhere, creating a climate of fear in immigrant communities.

Particularly disturbing is the targeting of asylum-seekers, employing the criminal justice system and the illegal entry statute in the “zero tolerance policy.” Under this policy, children, including toddlers, are seized and languish for months and years separate from their families, many of whom are seeking asylum. Directly contrary to federal statute and international law, another policy makes anyone who enters the country without inspection ineligible for asylum. Kirstjen Nielsen, Trump’s second Secretary of the Department of Homeland Security (“DHS”), ordered asylum applicants to await the lengthy processing of their claims in cartel-ruled border areas of Mexico, with no realistic safe shelter and deprived of all meaningful opportunity to exercise their statutorily-guaranteed right to access to counsel—a necessity, given today’s convoluted asylum law.

Trump’s first Attorney General, Jefferson Sessions, largely disqualified as grounds for asylum even the most brutal and terroristic persecution of women and violence perpetrated by inescapable quasi-state gang actors. Customs and Border Protection (“CBP”) officers mislead asylum-seekers at the southern border, telling them they don’t have the right to apply for asylum or saying yes, they may apply, but admitting only a minute fraction of those who present themselves for processing at ports of entry. President Trump’s Administration refuses to grant parole or reasonable bond even to those asylum-seekers who establish a credible fear of persecution, frequently resulting in long-term detention, and forcing on detained asylum-seekers the Hobson’s choice of lengthy incarceration in terrible conditions in the United States or the risks of persecution and death in their countries of origin.

International law prohibits using the criminal justice system or prolonged administrative detention to deter and discourage bona fide asylum-seekers from asserting and proving their claims. We suggest two remedies: Federal courts should enforce article 31 of the 1951 Refugee Convention (1) by prohibiting criminal charges of unlawful entry against bona fide asylum-seekers until they complete the asylum application process and are denied asylum; and (2) by requiring parole or reasonable bond for asylum-seekers who pass fair credible fear interviews. The article argues that bona fide asylum-seekers should be kept in detention only for a short period, if at all, to determine whether they have a credible fear of persecution.

Article 31 of the Refugee Convention, made binding on the United States through our accession to the 1967 Refugee Protocol, generally prohibits “impos[ing] penalties, on account of their illegal entry or presence, on refugees . . . where their life or freedom was threatened.” “Penalties” clearly must include not only criminal prosecution and prison, but also prolonged immigration detention and the seizure of children from parents without good cause, for “deterrence” purposes. We argue also that customary international law and human rights treaties support the recommended remedies and stand squarely against the Trump Administration’s policies. Federal courts may utilize customary international law directly or through the Charming Betsy canon.

Not only do the Trump Administration’s harsh immigration policies and practices violate international law and American values, but also foretell a government tending toward exclusion, racism, nationalism, parochialism, authoritarianism, and disregard of the rule of law. The parallels between the Trump Administration and Hungary’s autocratic, essentially one-party, state, are chilling. See Patrick Kingsley, He Used to Call Victor Orban an Ally. Now He Calls Him a Symbol of Fascism, N.Y. Times (Mar. 15, 2019), https://www.nytimes.com/2019/03/15/world/europe/viktor-orban-hungary-ivanyi.html (on file with the Columbia Human Rights Law Review).

Federal courts, however, have both the authority and the responsibility to enforce the 1951 Refugee Convention and the 1967 Refugee Protocol as well as international human rights norms to protect asylum-seekers from criminal prosecution and from prolonged detention. The Framers of the United States Constitution and its key amendments envisioned that federal courts would apply treaties as the rule of decision to protect foreigners and would serve as a check upon an Executive that tramples on individual rights, particularly the rights of a vulnerable minority. Given the outlandish behavior of this Administration, federal courts must live up to that vision.

The current refugee crisis demands novel legal solutions, and new ways of summing the political will to implement them. As a matter of national incentives, the goal must be to design mechanisms that discourage countries of origin from creating refugees, and encourage host countries to welcome them. One way to achieve this would be to recognize that persecuted refugee groups have a financial claim against their countries of origin, and that this claim can be traded to host nations in exchange for acceptance. Modifications to the international apparatus would be necessary, but the basic legal elements of this proposal already exist. In short, international law can and should give refugees a legal asset, give host nations incentives to accept them, and give oppressive countries of origin the bill.

Pursuant to our obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The “on account of” prong of the asylum determination is referred to as the nexus requirement. The paradigmatic asylum case features a man fleeing a dictatorial regime that has persecuted or would persecute him on account of his political dissidence or ethnicity. Absent credibility concerns, these cases are routinely granted, and immigration judges do not question whether the nexus requirement has been met.

In other cases, however, for example cases in which a woman is fleeing gender-based violence such as domestic violence, trafficking, or forced marriage, or cases in which a young man is fleeing retribution because he refused recruitment to a gang, the immigration agency has frequently denied relief. Often, even if the applicant has shown that she or he is a member of a cognizable particular social group or has another protected trait, immigration judges have held that the nexus requirement has not been met. Judges have reasoned that “personal” or “criminal” reasons motivated the persecution, as opposed to the protected ground. In the domestic violence context, for example, immigration judges have held that the abuse occurred because the abuser was a “despicable person” or due to his “inherent meanness,” rather than on account of the victim’s gender or social group. Similarly, in the gang context, immigration judges have held that the persecution occurred due to generalized violence or the gang members’ desire for increased power, as opposed to the victim’s gender or social group.

Yet, in the paradigmatic asylum case, immigration judges have not stopped to ask whether the dictator was a “despicable person” or in pursuit of more power. They have implicitly recognized that although these things may of course be true, it is also clear that the persecution occurred due to the victim’s political opinion or ethnicity.

This article attempts to explain that discrepancy. I argue that, unlike the paradigmatic asylum case, where the persecutor’s motives are overt and well-documented, some gender-based cases and cases based on gang violence feature “silent motives.” In cases involving silent motives, it falls upon the immigration judge to fill in the nexus gap left by this silence. Accordingly, unlike in the paradigmatic asylum case, the nexus determination in such cases is susceptible to influence from the immigration judge’s biases.

This article uses theories from cognitive science to posit that when immigration judges analyze silent motives cases, they use heuristics and other mental shortcuts, which often work against finding nexus on account of a protected ground. In two prior articles—The New Nexus and Nexus Redux—I proposed a new standard for evaluating nexus in asylum cases. This article explains why such a standard is necessary.

On May 19, 2017, Illinois Attorney General Lisa Madigan offered the introductory keynote remarks at the Bringing Human Rights Home Lawyers’ Network Annual Human Rights in the U.S. Symposium, entitled Localizing Human Rights in the New Era: Strategies for State and Local Implementation of Human Rights in the United States. The following is adapted from her remarks.

Human rights in the United States are at an inflection point, and the orientation is local. In the wake of the 2016 presidential election and renewed threats to human rights and democratic institutions, state and local officials and human rights advocates are working locally to resist harmful federal policies and to fill the gaps in federal civil rights enforcement. Indeed, safeguarding and securing human rights at the local level has more urgency than ever. Near daily protests and demonstrations, which consistently invoke human rights language and framing, illustrate the breadth of rights at stake.1 Human rights were front and center at the women’s marches that erupted across the country in January of 2017. Black Lives Matter and the Movement for Black Lives have embedded human rights into their approaches. And recent efforts to repeal the Affordable Care Act (ACA) have sparked public support for healthcare as a human right across the United States.

As rights protections are increasingly threatened, many states and local governments are stepping in, often echoing support for human rights. For example, Minneapolis Mayor Betsy Hodges grounded her call to reject the repeal of the ACA in human rights, stating that it “is immoral that anyone in America would be without affordable access to healthcare, which is [one of] the most basic of human rights.” The National League of Cities has noted the negative human rights implications of state laws that preempt these progressive local policies.

Of course, state and local governments have long played an important role in bringing the United States into compliance with its international human rights commitments. But in recent years, the role of local governments has taken on greater significance, as an increasing number of state, city, county, and municipal level officials embrace a proactive human rights approach, develop new tools and techniques to address local problems, and influence local, state, and national policy. Lawyers and advocates, too, are initiating, encouraging, and promoting innovative efforts to “bring human rights home.” This special issue of the Columbia Human Rights Law Review explores the localization of human rights in greater depth.

This Note contributes to the literature in three ways. Part I of this Note defines and describes the targeted context, provides examples of state/municipal delegation, discusses the underlying tension between vindicating federal rights and respecting states’ rights to structure their own internal governance, and observes that courts have taken a nuanced approach to resolving this tension analogous to § 1983’s standards supervisory liability. Part II describes judicial approaches to state/municipal liability and analyzes two proposed theoretical frameworks. Part III examines the history and function of § 1983’s “supervisory liability” standards, looks at recent state/municipal delegation cases through the lens of supervisory liability, and argues for the adoption of an analogous standard to govern state/municipal delegation.