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Refugee Responsibility Sharing or Responsibility Dumping?

A silver lining of recent migration crises is increased reliance on responsibility-sharing arrangements in international actor responses. This new experience allows for evidence-based analysis of such arrangements. We distinguish between progressive arrangements—ones that shift responsibilities to more affluent, institutionally competent, and safer countries—and regressive arrangements that do the opposite and in fact constitute responsibility dumping. […]

Empire, Borders, and Refugee Responsibility Sharing

International lawyers have been preoccupied with refugee responsibility sharing for decades, and with good reason. They have invested energy both in critiquing the existing regime and developing proposals for alternatives. However, the corresponding literature has largely, though not entirely, neglected two related but distinct phenomena: imperial domination and imperial intervention. I argue that attention to imperial domination and imperial intervention, which I define shortly, should unsettle the very frame of responsibility sharing and even asylum for many who are coerced into migration.

“Perceived to be Deviant”: Social Norms, Social Change, and New York State’s “Walking While Trans” Ban

Section 240.37 of the New York State Penal Code, colloquially known as the “Walking While Trans” Ban, is an example of our nation’s commitment to its identity—defining the boundaries between what is deviant and non-deviant, what is normative and non-normative. This Note seeks to understand the intersection between criminalization, gender identity, social norms, and the […]

Recounting: An Optimistic Account of Migration

To be forced to move from a beloved home is a tragedy, no matter the cause. But such moves need not end tragically. Though the wounds of losing a homeland may never fully heal, people with the strength and resilience necessary to withstand these kinds of moves are also often well-equipped to build something positive out of pain. They can be tremendous assets to others in their newfound homes.

Responsibility Sharing Within Borders

The international community has long recognized the principle that countries should share responsibility for hosting and supporting refugees. The 2018 Global Compact on Refugees’ recognition of an “urgent need” for greater responsibility sharing across borders reflects widespread agreement that the existing distribution of responsibility among countries is unjust and unworkable. A number of low- and middle-income countries in the Global South are the primary hosts of refugees, while wealthier countries, such as Australia, many European countries, and the United States, deliberately prevent arrivals and strictly limit their acceptance of refugees. The resulting distribution of responsibility tracks the proximity to the countries from which refugees flee, and parallels neither the capacities of states to support refugees, nor the extent of their moral duties to do so.

Principles for Responsibility Sharing: Proximity, Culpability, Moral Accountability, and Capability

Responsibility sharing was a central commitment in the 2016 New York Declaration for Refugees and Migrants.[1] It was also a key commitment in the preamble to the landmark 1951 Refugee Convention, in which countries of first asylum were promised “international cooperation” in return for providing refuge—though the Convention did not specify what this cooperation encompassed. And, just as the 1951 Refugee Convention failed to define what international cooperation meant, the New York Declaration was long on principles but short on specific commitments.

Housing the Decarcerated: Covid-19, Abolition, and the Right to Housing

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, […]

He Said. She Said. The iPhone Said. The Use of Secret Recordings in Domestic Violence Litigation

This Note explores the use of secret recordings in domestic violence litigation. It is particularly concerned with how the criminalization of domestic violence influences the laws governing the creation and use of secret recordings in this context. Secret recordings can provide determinative evidence of domestic violence. However, a domestic violence survivor who makes a secret recording is criminally and civilly liable under California’s Anti-Eavesdropping Statute (CEPA). CEPA also renders secret recordings inadmissible as evidence.

Instruments of Evasion: The Global Dispersion of Rights-Restricting Migration Policies

This Essay traces the global spread of legal techniques that strive, as official government policy documents explain, to “push the border out” as far away from the actual territorial border as possible. This concept, enthusiastically embraced by governments worldwide, involves screening people “at the source” or origin of their journey, not the destination, and then again at every possible checkpoint along the way. My study is devoted to tracing the core countries and actors that have facilitated the adoption of such policies. I show that desired destination countries systematically learn from, and emulate, each other’s innovations in asylum-denying laws and policies. The lens of diffusion, which guides the analysis, emphasizes processes of inter-jurisdictional learning and emulation. It invites us to ask how and why “ideas travel” across jurisdictions and to trace the complex ways in which states are interacting with one another in shaping their own border control policies.

Protect and Serve

There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of […]

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Wrongful Imprisonment and Coerced Moral Degradation

Despite the ever-growing number of exonerations in the U.S.—and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We […]

The South African Sources of the Diversity Justification for U.S. Affirmative Action

This essay reveals that the “diversity justification” for affirmative action has its roots in part in the South African anti-apartheid movement of the 1950s, and that when Justice Powell wrote the controlling opinion in the Bakke case, placing diversity at the center of our discourse on race in America, he was relying on arguments developed in the anti-apartheid movement that the right to admit a racially diverse student body was a key element of academic freedom. When examined in this light, Justice Powell’s opinion was more concerned with academic freedom than racial justice.

Environmental Justice and the Tragedy of the Commons

In The Tragedy of the Commons, Garrett Hardin argues that those who can use a resource for free consume more of it than they would if they had to pay for it. Public resources eventually collapse because people overuse them. Hardin’s widely accepted argument seems correct as far as it goes, but he focuses on […]

Be Not Afraid: How Ukraine Determined Its Future, United the West, and Strengthened Global Democracy

By withstanding and pushing back Vladimir Putin’s unprovoked invasion, Ukrainians determined that their future as a sovereign state is theirs alone to decide. In doing so, Ukraine galvanized the West to mount decisive sanctions and military aid to Ukraine that have crippled Russia’s ability to wage wars of conquest, thereby enforcing international laws on self-determination. Ukraine’s resistance, the West’s unity, and Russia’s naked aggression have sharply elevated public support for the post-World War II order governed by international rules regarding self-determination, democracy, and human rights, and institutions like the EU, which were formed to place these principles in action. It has also proved the indispensability of NATO to Eastern European member states who fear potential invasions by Russia and Western political and economic unity on deterring Russian aggression. These groundbreaking precedents may also protect the rights of vulnerable countries far beyond Europe’s borders.

Is Roe the New Miranda?

Roe v. Wade and Miranda v. Arizona are among the most notable decisions handed down by the Supreme Court. Issued less than a decade apart, these two opinions are widely recognized as being foundational to our legal system. This year, Roe finds itself in the legal crosshairs. Two cases, Whole Woman’s Health v. Jackson and […]

Arthrex and the Politics of Patents

This article is being co-hosted by Fed Circuit Blog for an online symposium entitled “Patent Law and Institutional Choice.” The full symposium can be found here. The Supreme Court’s decision in Arthrex is the latest in a growing set of decisions regarding administrative patent law. A close look at this entire series suggests that Arthrex […]

Eyes Wide Shut: Using Accreditation Regulation to Address the “Pass-the-Harasser” Problem in Higher Education

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when […]

A Pathway to Health Care Citizenship for DACA Beneficiaries

Since 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other […]

The Discounted Labor of BIPOC Students & Faculty

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, […]

#BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law Racial Justice for Street Vendors     Introduction […]

Racial Justice for Street Vendors

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law #BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change […]

The Racial Reckoning of Public Interest Law

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: Racial Justice for Street Vendors #BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change     […]