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  • From Pelican Bay to Palestine: The Legal Normalization of Force-Feeding Hunger-Strikers

    Hunger-strikes present a challenge to state authority and abuse from powerless individuals with limited access to various forms of protest and speech—those in detention. For as long as hunger-strikes have occurred throughout history, governments have force-fed strikers out of a stated obligation to preserve life. Some of the earliest known hunger-strikers, British suffragettes, were force-fed and even died as a result of these invasive procedures during the second half of the 19th century. This Article examines the rationale and necessity behind hunger strikes for imprisoned individuals, the prevailing issues behind force-feeding, the international public response to force-feeding, and the legal normalization of the practice despite public sentiment and condemnation from medical associations. The Article will examine these issues through the lens of two governments that have continued to endorse force-feeding: the United States and Israel. This examination will show that the legal normalization of force-feeding is repressive and runs afoul of international human rights principles and law.

  • How Should the United Nations Intervene in Libya’s African Migrant Crisis?

    By Shanene Frederick Associate Editor, Volume 23 In recent months, increasing media attention has been devoted to the plight of African migrants leaving their home countries in the hopes of reaching Europe.[1] These migrants often give money saved up for the journey to smugglers in Libya, who put them in boats that sail across the Mediterranean, without regard for the migrants’ lives or well-being.[2] Often times, these migrants die during the trips and their bodies wash ashore.[3] As Libya has begun to tighten up security along its coast, reports of smugglers selling African migrants off into slavery have surfaced.[4] What action should be taken in order to help these people of color from death and/or exploitation? One intuitive solution would be the involvement of the United Nations (UN), which is arguably the world’s most influential, powerful, and well-known international organization. The United Nations’ primary goals include maintaining international peace and security and achieving international cooperation in solving international problems.[5] The UN has a wide range of tools in its arsenal that may be used to meet those goals. For example, the UN Security Council has the power vested by the UN Charter to trigger a wide range of obligations binding on the countries of the world.[6] Take the various economic sanctions imposed on North Korea[7] for its testing of nuclear weapons for example, or the sanctions imposed on individuals suspected of supporting terrorism in the aftermath of 9/11.[8] The UN has even engaged in quasi-colonialism, acting as the administrator of territories like East Timor[9] and Kosovo.[10]

  • To Sue or Not to Sue, That is the Question: How the JASTA Will Affect US-Arab Relations

    By Anonymous Associate Editor, Vol. 22 President Obama recently vetoed Congress’s bill, Justice Against Sponsors of Terrorism Act (JASTA), which amends the Foreign Sovereign Immunities Act. JASTA allows United States (U.S.) citizens to sue foreign governments for compensatory damages as a result of terrorist acts against the U.S.

  • 9th Circuit Rejects Board of Immigration Appeals’ Interpretation, Creates Circuit Split

    By Amy Luong Production Editor, Vol. 22 The Board of Immigration Appeals (BIA) recently clarified its interpretation of “obstruction of justice,” as part of the Immigration and Nationality Act (INA) § 101(a)(43)(S) to mean “affirmative and intentional attempt, with specific intent, to interfere with the process of justice.” The BIA also…

  • Fixing the EOIR: our immigration courts are desperately overburdened

    By Luis Arias Associate Editor, Vol. 21 The Executive Office for Immigration Review (EOIR) adjudicates immigration cases by interpreting the nation’s immigration laws. The court is an agency within the Department of Justice and, under delegated authority from the Attorney General, conducts immigration proceedings and appellate reviews.[1]…

  • From Arbitrariness to Coherency in Sentencing: Reducing the Rate of Imprisonment and Crime While Saving Billions of Taxpayer Dollars

    Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on the sentencing systems in the United States and Australia. The suggested changes would result in a considerable reduction in incarceration numbers, lower crime, and a reduction in the expenditure on prisons. The key concrete recommendations of this Article are that the criminal justice system should move towards a bifurcated system of punishment, reserving imprisonment mainly for serious sexual and violent offenses and reducing the terms of imprisonment in general.

  • An Insurmountable Obstacle: Denying Deference to the Bia’s Social Visibility Requirement

    In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that courts should instead follow the United Nations High Commissioner for Refugees’ definition of a particular social group, in which social visibility is one of two methods to establish a particular social group. An adoption of this framework would serve Congress’s intent to adhere to the United States’ international obligations.

  • Litigating against an Epidemic: HIV/AIDS and the Promise of Socioeconomic Rights in South Africa

    With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on behalf of those afected by HIV/AIDS. Building off the judgment in the Treatment Action Campaign case, this Comment argues that further litigation should be used to hold the government to the standards of the Constitution and to mitigate the impact of the epidemic.

  • Employee Free Choice or Employee Forged Choice? Race in the Mirror of Exclusionary Hierarchy

    The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate tile necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize tile workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This Article deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to shot' that rather than embracing freedom for workers, eliminating, poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.

  • Determining the (In)Determinable: Race in Brazil and the United States

    In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. As a result, Brazilians ubiquitously profess their African ancestry. Yet, a highly stratified racial classification system exists in Brazil whereby the guiding principle for determining race is one's physical appearance—hair texture, skin color, nose size, eye shape, for example. However, it is commonly assumed that the rule of hypodescent-the presence of one African ancestor defines an individual as Black-determines an individual's "Blackness" in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one's physical appearance is determinative. Contrary to the proposition that race, and specifically Blackness, is fundamentally different in Brazil and the United States, Professor Greene contends that one's physical appearance is the primary determinant of Blackness in both American nations. Indeed, one's ancestry is necessarily implicated in determining race based on “physical appearance," as this method of classifying race is grounded in socially mediated presumptions concerning how an individual's physical appearance denotes his or her genetic makeup. Thus, in this Article, Professor Greene mitigates the void in Brazil/U.S. comparative scholarship discussing race-conscious affirmative action by delineating the universality of race, racial hierarchy, and racial ideology in Brazil and the United States.