Issue: 3

Scholars have long debated whether international human rights treaties matter. Generally, quantitative studies are more skeptical about their efficacy, while qualitative research often affirms their positive impact. To reconcile these seemingly contradictory perspectives, this Article proposes the concept of noncompliant effectiveness, where human rights treaties are effectively implemented without State compliance. This Article presents a triad case study focusing on the implementation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in China, Japan, and South Korea. The CRPD is a relatively recent international human rights treaty that has rarely been discussed in the debate on the effectiveness of human rights treaties. China, Japan, and South Korea, with their Confucian cultures and education systems, are often criticized for endorsing ableism and elitism, making them particularly challenging cases for improving the rights of persons with disabilities. By specifically examining the implementation of the right to inclusive education, as mandated by Article 24 of the CRPD, this Article demonstrates that noncompliant but effective practices can improve the educational situations of persons with disabilities. However, it cautions that while noncompliant effectiveness may be preferable to noncompliant ineffectiveness, deviating from the fundamental requirements of a convention may only lead to superficial and temporary improvements. Without systematic changes aligning with the core demands of a human rights treaty, progress may remain limited and largely symbolic.

Although the proliferation of video footage documenting police misconduct has cemented a public expectation that individuals have a First Amendment right to film officers, the right to record law enforcement remains unsettled and under threat. This Note undertakes a comprehensive survey of every federal appellate decision on the right to record, revealing a fragile consensus that the right exists, coupled with pervasive uncertainty about its contours. Despite growing recognition of the right, this Note argues that it cannot be fully vindicated due to qualified immunity, a Supreme Court that is deferential to law enforcement, and disagreement among the judiciary regarding the limits of the right. State legislatures have exploited this ambiguity and uncertainty, proposing and enacting buffer-zone laws and other restrictions that criminalize and chill the act of filming police. Given the importance of the right to record and the patchwork of conflicting federal, state, and local laws, a federal solution is needed. Drawing on successful statutes in Colorado, New York, and California, as well as lessons from failed restrictions, this Note proposes model legislation that would clearly define and robustly protect the right to record.

Do court victories result in social change? Can victories in court result in losses outside of court? If victories in court are no guarantee of victory outside of court, how much worse are court defeats? This Article explores these questions in part through analyzing Ogoni litigation against Royal Dutch/Shell. In 2002, Esther Kiobel and several co-plaintiffs tried to hold Royal Dutch/Shell accountable for its role in the death of Kiobel’s husband and for wider corporate abuses and related state human rights violations in Ogoniland. But in 2013, a unanimous United States Supreme Court held that the Alien Tort Statute (ATS) did not expressly grant extraterritorial jurisdiction to the federal courts to hear suits such as Kiobel’s. Esther Kiobel’s failed litigation in the United States (and in the Netherlands) merely exemplifies the extent to which foreign courts in the Global North——the courts of the company—effectively insulate multinational corporations from accountability for human rights violations and environmental wrongs. Worse still, Kiobel’s failure was not hers alone. Kiobel’s activism led directly to the narrowing, and ultimately the shuttering, of the ATS mechanism for corporate accountability litigation—a victory for corporations rather than for their victims. Kiobel’s activism suggests that courts may be a “hollow hope.” 

Despite these litigation failures and setbacks, I argue, the focus on ATS litigation in the United States and the failure to appreciate favorable outcomes in foreign corporate accountability litigation obscures the role that litigation plays in norm generation and norm diffusion processes. In the aggregate, there have been numerous positive outcomes from Ogoni litigation over the past three decades. Far from being a hollow hope, I argue that if one looks beyond Kiobel’s case and other ATS cases that dominate the focus of much discourse in the U.S. legal academy, one might perceive how victim-plaintiffs have succeeded in other forums such as in Canada, England, the Netherlands, France, and elsewhere in Europe. I show, moreover, that whether Ogoni and other Indigenous victim-plaintiffs win or lose, their continued litigation generates positive benefits for society by challenging procedural barriers and by shifting the discourse around corporate accountability for human and environmental rights violations. Scholars have long recognized the role that corporations, among other non-state actors, can play in the formation of international law. Here, Indigenous peoples’ transnational legal mobilization in the corporate accountability and environmental rights spaces constitutes an example of international lawmaking from the bottom up. I thus argue that it is time for scholars of international law and human rights to pay more attention to the international lawmaking—the agency—of Indigenous peoples and other marginalized demographic groups. Ogoni and other Indigenous victim-plaintiffs have brought into mainstream legal and political discourse the cultural and group rights claims of Indigenous populations (for example, self-determination and language claims). They have forged connections with Indigenous groups and environmentalists around the world who support each other’s litigation and non-litigation campaigns. They have stimulated and enabled the capacity-building of non-profit public interest litigation organizations to sustain multi-year challenges against well-resourced multinational corporations. 

Indeed, as I argue in this Article, the positive outcomes of Ogoni and other Indigenous peoples’ transnational legal mobilization include the very making of international law from the bottom up. This lawmaking is reflected in soft law instruments such as the UN Guiding Principles on Business and Human Rights, which adopts “access to remedy” as one of its three central pillars, and in the text of the UN Human Rights Council open-ended intergovernmental working group’s draft business and human rights treaty, which likewise declares access to remedy to be a core purpose. Thus, there is an extent to which the Ogoni case study reveals an instance of “winning through losing.” 

Annually, the United States military spends millions of dollars to privatize its drone warfare program through the use of private contractors. While the private contractors have consequently become the backbone of American drone warfare, the military has continued to defend its elusive decision-making authority in the chain of command. Since the global war on the Middle East, this dysfunctional hierarchy has resulted in a costly gap in liability for thousands of foreign civilian victims of drone strikes. This Note explores how the privatized dynamic behind the deadly operations of U.S. drone warfare can be grounds for a claim under the Alien Tort Statute (ATS). Though the ATS is seldom used as the sole basis for recovery, the recent Supreme Court decision in Nestlé has highlighted the liability domestic corporations, like the private contractors, may face under the statute for their tortious conduct abroad. Accordingly, this Note crafts a hypothetical ATS claim not only to illustrate how the United States sanctions mass violations of international human rights, but also to advance a legal remedy for victims of highly technologized warfare, which has caused complex collateral consequences on civilian lives. Ultimately, this Note urges judicial and legislative codification of the ATS’s extraterritorial reach to better facilitate the statute’s purpose in a modern era. Support for a transnational quality is rooted in legislation, economic benefits, and, importantly, normative benefits for civilian victims.

When a person is convicted and sentenced to incarceration, we imagine that that person will be incarcerated within the boundary lines of the state that convicted them. That tenet is foundational to the United States’ federalist scheme, wherein states retain the sovereign authority to adjudicate crime and punishment within their borders. Naturally, then, the convicting state will serve as the recipient and determinant of all legal and administrative complaints arising from their incarcerated citizens. But for a select population of incarcerated persons—the story is not so simple.

Every year, several thousand people incarcerated in correctional facilities are transferred out of the state that convicted them into the custody of another state. These out-of-state transfers are governed by interstate corrections compacts, the largest of which includes thirty-nine states and the federal government. Corrections compacts govern every facet of a person’s incarceration out-of-state and, on paper, provide clear remedies for out-of-state prisoners to vindicate grievances with their conditions of confinement. In reality, the act of transferring an incarcerated person completely alters the legal infrastructure surrounding them, making it almost impossible to determine who is responsible for providing administrative and post-conviction relief.

This Note unfurls the intricate legal, administrative, and constitutional issues raised by interstate corrections compacts. Its primary concern is in exploring whether the Compact Clause of the Constitution has transformed the various interstate corrections compacts currently in operation into federal law. The question is not purely academic: if the Compact Clause has transformed corrections compacts into federal law, violations of the rights conferred under these agreements can serve as the basis for claims under 42 U.S.C. § 1983, the primary mechanism through which incarcerated litigants challenge the conditions of confinement. Under current law, however, federal courts have shut the courthouse door on those incarcerated out-of-state based on an incomplete history of the legal and political history of these agreements. This Note aims to reset the historical narrative through compelling legal and historical evidence that weigh decisively in favor of reading corrections compacts as elements of federal law.

Part I traces the political history of interstate compacts generally and criminal compacts specifically. This engagement with the historical record contextualizes corrections compacts as only one facet of a broad, national movement that encouraged regional cooperation between states with the legal and political blessing of the federal government. Part II introduces the complex web that comprises Compact Clause jurisprudence with a keen eye towards its application to corrections compacts. The Part concludes by engaging with the legislative and jurisprudential history of these agreements, and demonstrates that Congress has provided ample evidence that correction compacts received the requisite consent to be transformed into federal law. Part III then canvasses the history of state, and later federal, prison administration from the Founding Era to date. This engagement buttresses the legislative record, and once again strongly suggests that corrections compacts have been transformed into federal law. This Note does not suggest that the ability to access federal court is a panacea for incarcerated persons; instead, it asserts that access to federal court is one of several pathways to which incarcerated citizens are constitutionally entitled, and one that may provide desperately needed relief.

May 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outsidethe realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now that those measures have ended, evictions and residential utility shutoffs are again rampant, surpassing pre-pandemic levels in numerous places. For marginalized and minoritized communities that have long disproportionately experienced evictions and utility disconnections and their connected health harms, the health emergency persists.

This Article scrutinizes legal drivers of health outside of healthcare—specifically in the areas of housing and residential energy access—and applies the theoretical lens of health justice to glean lessons from legal interventions in those areas during and after the COVID-19 Public Health Emergency. Drawing upon the critical theoretical perspectives that a health justice analysis necessitates, it contends that as contagion risks represented an alignment of interests among those who have long been marginalized and those with more privilege, the country engaged in a significant experiment in a time of crisis—taking unprecedented action in halting many evictions and utility disconnections and providing historic levels of emergency rental and utility assistance. Although these measures had positive impacts, they were ultimately temporary and inadequate. Instead of seizing on the opportunities for more transformative reform that can arise from a crisis, such COVID-era measures failed to lead to a meaningful disruption of the status quo. This Article concludes by arguing that to achieve health justice, reforms must be sustained, structural, and led by the communities who endure daily the legally constructed public health emergency of health inequity.