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O\u27Donnell, Clare

English

Accessing Health Care as a Foster Child

Shchory, Noga Blickstein

Price Discrimination  Just for You  - A Proposal to Increase Enforcement of Vertical Restraints That Are Designed to Sustain Personalized Pricing

MARYLAND CAREY LAW MAGAZINE Fall 202139
The Distinguished Graduate Award is presented to an alum who has 
achieved prominence through professional excellence and service to the 
community. Edwards, a recently retired partner of Winston & Strawn 
in Chicago, is regarded as a leading financial services attorney in the 
nation and served as chair of the firm’s Bank Regulatory Practice. 
Edwards is a former long-standing member of Maryland Carey Law’s 
Board of Visitors, serving as chair from 2011 to 2015. 
We are pleased to share Maryland Carey Law’s 2021 Alumni Honors Awardees. Selected annually by the 
Alumni Board Awards Committee and confirmed by the board, honorees have demonstrated excellence in 
their chosen careers and commitment to the law school community. This year’s honorees will be celebrated 
in December.
The Judicial Excellence Award is presented to an alum who 
exemplifies the highest standards of judicial excellence; displays 
extraordinary courage, energy, and tenacity in the handling of 
controversial and difficult cases; and embodies strength of character, 
service, and competence as a jurist, lawyer, and public servant. Judge 
Wright served in the judiciary for 26 years, retiring in 2019 from the 
Maryland Court of Special Appeals.
Distinguished Graduate Award 
Christine A. Edwards ’83
Judicial Excellence Award 
The Hon. Alexander Wright, Jr. ’74 
alumni 
1
et al.: Alumni Honors
Published by DigitalCommons@U  Carey Law,
MARYLAND CAREY LAW MAGAZINEFall 2021 40
The Public Service Award is presented to an alum who has 
demonstrated significant and substantial contributions to furthering 
ideals of public service in the law. Siri is executive director of the 
Women’s Law Center of Maryland, and previously served as president 
of Maryland Carey Law’s Alumni Board.
The Rising Star Award recognizes a recent graduate whose exemplary 
contributions of service and leadership, either professionally or at 
Maryland Carey Law, have brought credit to the graduate and this 
institution. Jackson is a partner in the DC office of McDermott Will 
& Emery, with a practice focused on transactional and regulatory 
counseling for clients in the healthcare industry, along with advising 
clients on the legal, regulatory and compliance aspects of 
digital health.
The Star Award (awarded in alternating years) recognizes the unsung 
heroes among the alumni population. Those alumni who volunteer for 
Maryland Carey Law behind the scenes with little fanfare, and who are 
steadfast in their support, loyal in their hearts, and deserving of special 
recognition. Before retiring in 2016, Tillman worked for the City of 
Baltimore as its principal counsel for the Department of Law and served 
on Maryland Carey Law’s Alumni Board until 2020. 
Benjamin L. Cardin 
Public Service Award
Michelle Daugherty 
Siri ’02
Rising Star Award
Marshall E. Jackson, Jr. ’13
Star Award
Elva E. Tillman ’87
honors
2
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Alumni Honors

Dammann, Jens

State Competition for Corporate Headquarters and Corporate Law: An Empirical Anaylsis

Elson, Norton

Gwon, Howard

Hoffmann, Diane

Kelmenson, Adam M

Khan, Ahmed

Kraus, Joanne F

Onyegwara, Casmir C

Povar, Gail

Sheikh, Fatima

Tarzian, Anita J.

Getting Real: The Maryland Healthcare Ethics Committee Network’s COVID‑19 Working Group Debriefs Lessons Learned

Morales, Daniel I.

Maryland Journal of International Law 
Volume 35 Issue 1 Article 11 
Revelation out of Rupture: Building Human Rights from the 
Bottom Up 
Daniel I. Morales 
Follow this and additional works at: https://digitalcommons.law.umaryland.edu/mjil 
 Part of the International Law Commons 
Recommended Citation 
Daniel I. Morales, Revelation out of Rupture: Building Human Rights from the Bottom Up, 35 Md. J. Int'l L. 
127 (2021). 
Available at: https://digitalcommons.law.umaryland.edu/mjil/vol35/iss1/11 
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MORALES (DO NOT DELETE) 2/21/21 12:59 PM 
 
127 
 
 Revelation out of Rupture: Building Human 
Rights from the Bottom Up 
DANIEL I. MORALES†  
INTRODUCTION 
Children and parents are dying in the Mediterranean;1 Europe, at 
Italy’s behest, refuses to rescue drowning migrants in its waters.2  
The American economy booms,3 unemployment hovers at its lowest 
level in history;4 and yet, our National government has effectively 
suspended asylum for refugees from the global south;5 refugees tired 
of waiting patiently to claim their human rights attempt to cross the 
border between Mexico and the U.S. and are teargassed6 or left to 
drown in rivers7 en route to an America that will not welcome them.  
If refugees manage to arrive on United States soil, they are caged-
 
© 2020 Daniel I. Morales. 
† Associate Professor of Law and George A. Butler Research Professor, The 
University of Houston Law Center. 
 1. Missing Migrants Project, INT’L ORG. FOR MIGRATION (Mar. 26, 2020), 
https://missingmigrants.iom.int/region/mediterranean. 
 2. Paul Hockenos, Europe Has Criminalized Humanitarianism, FOREIGN POLICY (Aug. 
1, 2018), https://foreignpolicy.com/2018/08/01/europe-has-criminalized-humanitarianism/. 
 3. Yun Li, This is Now the Longest Economic Expansion in History, CNBC (last 
updated July 2, 2019), https://www.cnbc.com/2019/07/02/this-is-now-the-longest-us-
economic-expansion-in-history.html. 
 4. Anneken Tappe, The US Economy Added 225,00 Jobs in January, Beating 
Expectations, CNN (Feb. 7, 2020), https://www.cnn.com/2020/02/07/economy/january-jobs-
report/index.html. 
 5. Jens Manuel Krogstad, Key Facts About Refugees to the U.S., PEW RESEARCH 
CENTER (Oct. 7, 2019), http://pewresearch.org/fact-tank/2019/10/07/key-facts-about-
refugees-to-the-u-s/. 
 6. Alan Yuhas, U.S. Agents Fire Tear Gas Across Mexican Border, N.Y. TIMES (Jan. 1, 
2019), https://www.nytimes.com/2019/01/01/world/americas/migrants-border-tear-gas.html. 
 7. Azam Ahmed & Kirk Semple, Photo of Drowned Migrants Captures Pathos of 
Those Who Risk it All, N.Y. TIMES (June 25, 2019), 
https://www.nytimes.com/2019/06/25/us/father-daughter-border-drowning-picture-
mexico.html. 
MORALES (DO NOT DELETE) 2/21/21  12:59 PM 
128 MARYLAND JOURNAL OF INTERNATIONAL LAW [Vol. 35:127 
even if they are kids.8  As fresh horrors emerge daily from 
Washington,9 London,10 Hong Kong,11 India,12 China,13 well, nearly 
every nation on Earth,14 we, who have dedicated our lives to the 
pursuit of knowledge that ensures human flourishing across borders, 
must resist becoming numb or despondent.  Even more important, 
perhaps, is that we embrace this terrible moment of rupture as a 
moment of revelation.15 
Moments of revelation are difficult for people like us, 
professors, “experts.”  We think we know things.  We think we know 
how the world works, in particular. And in moments of revelation—if 
we really encounter them—we learn that we didn’t know much at all, 
or that we missed what was most important.  Yet there are 
opportunities in the face of this encounter with our own ignorance. 
We can enrich our understanding by integrating this new information 
into what we know, and using it to prune branches of knowledge 
which have proven false. We could also do what’s easier: put our 
heads in the sand and cover our ears, pretending that nothing 
 
 8. Clara Long, Written Testimony: “Kids in Cages: Inhumane Treatment at the 
Border”, HUMAN RIGHTS WATCH (July 11, 2019), 
https://www.hrw.org/news/2019/07/11/written-testimony-kids-cages-inhumane-treatment-
border. 
 9. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (Sotomayor, J., dissenting). 
 10. Luke McGee, No-deal Brexit is Back—and It Looks More Likely Than Ever, CNN 
(Feb. 29, 2020), https://www.cnn.com/2020/02/28/uk/no-deal-brexit-is-back-analysis-intl-
gbr/index.html. 
 11. Daniel Victor, Why are People Protesting in Hong Kong, N.Y. TIMES (Nov. 18, 
2019), https://www.nytimes.com/2019/11/13/world/asia/hong-kong-protests.html. 
 12. Mira Kamdar, What Happened in Delhi Was a Pogrom, THE ATLANTIC (Feb. 28, 
2020), https://www.theatlantic.com/ideas/archive/2020/02/what-happened-delhi-was-
pogrom/607198/. 
 13. Anna Fifield, China Compels Uighurs to Work in Shoe Factory that Supplies Nike, 
WASHINGTON POST  (Feb. 29, 2020), 
https://www.washingtonpost.com/world/asia_pacific/china-compels-uighurs-to-work-in-
shoe-factory-that-supplies-nike/2020/02/28/ebddf5f4-57b2-11ea-8efd-
0f904bdd8057_story.html. 
 14. Norimitsu Onishi, France Announces Tough New Measures on Immigration, N.Y. 
TIMES  (Nov. 7, 2019), https://www.nytimes.com/2019/11/06/world/europe/france-macron-
immigration.html; Helen Davidson & David Fanner, Life on Manus: How Australia 
Transformed a Tropical Island Into a Prison, THE GUARDIAN (July 30, 2019), 
https://www.theguardian.com/australia-news/video/2019/jul/30/life-on-manus-how-australia-
transformed-a-tropical-island-into-a-prison-video; Ivan Duque, Colombia is Committed to 
Helping Venezuelan Refugees. But We Can’t Do It Alone., WASHINGTON POST (Feb. 27, 
2020), 
https://www.washingtonpost.com/opinions/2020/02/27/ivan-duque-colombia-venezuela-
refugees/. 
 15. I intend the religious/divine valence of revelation here, alongside its more prosaic 
meaning, to reveal unknown knowledge. Something about this moment feels both calamitous 
and like an opening for new possibilities.   
MORALES(DO NOT DELETE) 2/21/21  12:59 PM 
2020] REVELATION OUT OF RUPTURE 129 
happened.  We can simply ignore the content of the revelation and 
carry on as before. Rather than viewing the moment of revelation as a 
moment that brought forward new data, new evidence that we have a 
duty to incorporate into our vision of “how the world works,” we see 
the revelation as aberrant, an outlier that we can discard. (This 
worked for economists for a while!)16  It is not the approach I suggest. 
Instead we can embrace the less comfortable choice.  In the 
moment of revelation and rupture we can truly look the data in the 
eye.  We can look the new destabilizing, messy information in the 
eye and hold it in our gaze.  And use that data to anchor us as we 
experience the terrifying feeling that history did not end;17 here we 
are again, beset in the midst of it; and worse—in the midst of history 
cast as experts, but now knowing we haven’t a clue.  This is the 
frightening path I suggest to this group.  And what follows is an 
example of what that path looks like for me, for my effort to 
assimilate to my vision of “how the world works” to at least one 
instance, one “moment of revelation,” form the current global Human 
Rights crisis. 
MOMENT OF REVELATION: HUMAN RIGHTS ARE DANGEROUS; DIG 
DEEPER FOR HUMAN RIGHTS   
The moral underpinning of asylum law was the holocaust and 
the broader post-WWII moment,18 where the terrifying combination 
of nationalism, bureaucracy and the modern technology of death blew 
up for all to see.19  Asylum law, of course, is not alone in its 
parentage.  Every major global institution and legal regime was born 
in this old moment of revelation, or can trace its raison d’etre back to 
it.20  But what we’re learning now, in our new moment of revelation, 
is that those institutions and legal regimes are not enough to secure 
human rights and that those regimes and institutions lack 
legitimacy.21  Just as bad, these institutions also lack the ability to 
 
 16. John Cassidy, After the Blowup, NEW YORKER (Jan. 4, 2010), 
https://www.newyorker.com/magazine/2010/01/11/after-the-blowup. 
 17. See, e.g., FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992) 
(proclaiming the end of the Cold War marked the “end of history”). 
 18. See generally DAVID MARTIN, T. ALEXANDER ALEINIKOFF, HIROSHI MOTOMURA & 
MARYELLEN FULLERTON, FORCED MIGRATION LAW AND POLICY 43-58 (2d ed. 2013). 
 19. See generally HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (1951). 
 20. Peter Goodman, The Post-World War II Order is Under Assault From the Powers 
that Built it, N.Y. TIMES (Mar. 26, 2018), 
https://www.nytimes.com/2018/03/26/business/nato-european-union.html. 
 21. Id. 
MORALES (DO NOT DELETE) 2/21/21  12:59 PM 
130 MARYLAND JOURNAL OF INTERNATIONAL LAW [Vol. 35:127 
command the assent of the wealthy citizens who must be convinced 
to engage, and to apply, and to extend the human rights project that 
these institutions and laws were supposed to perpetuate.22 
The German case is particularly instructive.  Germany was 
supposed to have learned the lessons of WWII better than any other 
country.  And Angel Merkel acted as if that belief was true.  But as it 
became clear to her that her citizens would not readily act on their 
legal and moral duty to admit Syrian refugees en masse, she made a 
valiant effort to resuscitate the moral force of the postwar order.23  
She implored Germans to act on the lessons of their history, to take in 
the huddled masses fleeing the latest, devastating war.  “Wir schaffen 
das!”24—“We can do it!” she famously said; what she meant was, we 
can take on this moral project and live up to—perhaps, even 
redeem—our history. 
We know what happened.  Today this “we can do it!”—more 
precisely, we can do human rights!—moment is viewed as a terrible 
and—worse—naïve error.25   We can do human rights was a mistake, 
by the standard account, because Merkel should have known that 
German citizens’ commitment to global human rights was not robust 
enough to engage in the project of admitting and hosting a large 
population of refugees.  The right call would have been to reject the 
refugees and hold fast onto power in Germany, and in Europe, in 
order to accomplish the more important thing—to shore up center 
right-power and keep right-wing nationalism at bay. 
Here the analysis ends for most experts, but that can’t be enough 
for us human rights partisans in this moment of revelation.  It can’t be 
enough because notice the lesson of the standard account: cashing out 
 
 22. The number of refugees has never been larger and the international system that is 
supposed to protect refugees has been impeded by sovereign nations in the rich west 
developing strategies to keep refugees off their soil. See, e.g., Arelis Hernandez & Kevin 
Sieff, Trump’s ‘Remain in Mexico’ program dwindles as more immigrants are flown to 
Guatemala or are quickly deported, WASHINGTON POST (Feb. 27, 2020), 
https://www.washingtonpost.com/immigration/remain-in-mexico-deportation-asylum-
guatemala/2020/02/20/9c29f53e-4eb7-11ea-9b5c-eac5b16dafaa_story.html; See also Matina 
Stevis-Gridneff, Europe Keeps Asylum Seekers at a Distance, This Time in Rwanda, N.Y. 
TIMES (Sept. 8, 2019), https://www.nytimes.com/2019/09/08/world/europe/migrants-africa-
rwanda.html. 
 23. See generally SAMUEL MOYN, CHRISTIAN HUMAN RIGHTS (2015). 
 24. Emily Janicik, Wir Shaffen Das: Is it a Reality?, THE WIRE (May 22, 2018), 
https://thewire.wisc.edu/2018/05/22/wir-schaffen-das-is-it-a-reality/. 
 25. Gökce Yurdakul & Hartmut Koenitz, We Can Do It! (Or Can We?) Angela Merkel’s 
Immigration Politics, WEATHERHEAD CENTER FOR INT’L. AFFAIRS (May 24, 2019),   
https://epicenter.wcfia.harvard.edu/blog/we-can-do-it-angela-merkel-immigration-politics. 
MORALES(DO NOT DELETE) 2/21/21  12:59 PM 
2020] REVELATION OUT OF RUPTURE 131 
Human Rights is dangerous!  The notion that “we can do this” in 
Merkel’s words, that we—Germans—can live up to our obligations 
under international human rights law is the CAUSE of a renewed 
interest in Nazism in Germany.  Sit with that.  The Ur-Human 
right26—the right to asylum—is dangerous, too dangerous to be 
anything more than words, and so dangerous that states “must” let 
people die en route to shelter for fear of the internal political 
ramifications of living up to international human rights obligations. 
If human rights are too dangerous to do—that is, actually to 
implement in the times of crisis where they are most needed—then 
what are human rights doing? What are we—the human rights 
experts—doing? Is the Rich democracies’ current implementation of 
Human Rights, with its dead bodies in oceans and rivers; it’s 
criminalization of humanitarian Aid and Rescue–the criminalization, 
that is, of doing human right; is this the best we can hope for in our 
always already imperfect, even Fallen, World?  If this really is the 
best we can hope for, we should stop calling the Asylum project 
human rights and label it what it is—State charity provided not based 
on the scope of the need, but rather on the needs and limits of those 
who give.  After all, if in practice the most institutionally established 
and entrenched human right does not in fact operate as a right, then 
we expressly deceive others and ourselves with the label—it renders 
the human rights project hypocritical in the extreme—a false promise 
to mask the fallenness (or the never-risenness) of the “First World.” 
One cynical response to this revelation is to give up.  Maybe the 
whole project of human rights was doomed by human nature?  
Another response is to double-down on current strategies.  This 
response would accept the essentialist take on human nature in the 
wealthy global north and in response, urge better, more forceful 
international or domestic countermajoritarian laws or institutions to 
enforce human rights’ obligations: stronger international treaties with 
more sanctions attached for non-compliance; a larger role for 
Brussels, the European court and the EU.  In America: binding 
treaties; less discretion for the executive to roll-back asylum 
protections; restore robust judicial review over asylum claims in 
Article III courts. 
Many of these changes might pan out in the short or long run, 
but I think they fail to respond to some critical data points revealed 
by our current moment.  These changes fail to embrace this moment 
 
 26. The right to asylum is the most-widely accepted and institutionalized human right. 
MORALES (DO NOT DELETE) 2/21/21  12:59 PM 
132 MARYLAND JOURNAL OF INTERNATIONAL LAW [Vol. 35:127 
of revelation.   
First, what the prior response gets right: we do have to take in 
the fact that the individual moral foundation for human rights is weak 
for the median German voter and that weakness translates to 
insufficient political support for the refugee project at the necessary 
scale in this moment.  That is very clear.  But we need not treat this 
fact—of low support for refugees—as natural, and certainly not 
ineluctable.  While Merkel’s “we can do this!” was clearly not 
enough to sufficiently arouse German’s moral passions, the passions 
and moral convictions of human beings are not fixed and they can be 
aroused to humanitarian purposes.  In other words, We can do this in 
principle, there is no iron law of physics that prevents it. 
A second data point.  The median German voter’s view of 
Syrian refugee admissions may have sealed the fate of “Wir schaffen 
das,” but it is not the only viewpoint.  We have to appreciate that 
national populations are in themselves diverse and do not speak in 
one voice on this question.  For a large percentage of Germans, 
Merkel’s project is and was their project.  And that diversity of 
opinion has a geography.27  We have seen the same diversity on 
display in the United States, indeed Trump’s roll-back of asylum and 
immigration policies are deeply unpopular.28  It’s only by virtue of his 
hutzpah, the electoral college, and the wide berth given to executive 
power over asylum and immigration law, that his radical immigration 
and asylum plans are being implemented.  In other words, there exist 
powerful, wealthy geographies across the world with super-majorities 
of residents who want to do human rights.  But these geographies, of 
course, are disempowered because they do not map on to national 
borders—the only boundaries that matter in the international system.  
These are things I notice in this moment of revelation.  And 
here’s how they mark my thinking about a path forward for human 
rights.  First: at this juncture in the human rights project building 
support for human rights norms has to be a bottom up, not a top-
down project.  Only the granular accretion of human rights norms can 
build a human rights politics that can withstand the moments of crisis 
where human rights are actually needed.  So, German-by-German, 
 
 27. Erik Kirschbaum, Germany Still Has an East-West Divide—But Now It’s About 
Attitudes Toward Refugees, L.A TIMES (Sept. 17, 2018), https://www.latimes.com/world/la-
fg-east-west-germany-refugees-20180917-story.html. 
 28. Rick Noack, The Urban-Rural Divide that Bolstered Trump Isn’t Just an American 
Thing; It’s Prevalent in Europe, Too, WASHINGTON POST (Nov. 27, 2016), 
https://www.washingtonpost.com/news/worldviews/wp/2016/11/27/the-urban-rural-divide-
isnt-just-evident-in-american-politics-its-prevalent-in-europe-too/. 
MORALES(DO NOT DELETE) 2/21/21  12:59 PM 
2020] REVELATION OUT OF RUPTURE 133 
American-by-American, Aussie-by-Aussie, the moral foundation for 
human rights commitments must be laid.  If this is right, then what 
institutional response should follow?  How does the project of human 
rights become a personal project that is scaled-up—rather than a 
national project imposed from on high?  Here are a few insufficient 
thoughts: 
For one, we might look to decentralize refugee admissions in 
two ways.  Receiving countries might follow Canada’s lead and 
allow expansive private sponsorship of refugees.  With private 
sponsorship of refugees, the project of refugee admission can literally 
become a voluntary personal project, to help to settle and integrate 
refugees into the host nation, all the while unearthing for individual 
sponsors and for the refugees themselves knowledge of what the 
project of human rights really is in a granular, intimate way; allowing 
these citizens to feed back that knowledge into the national political 
systems empowered by the international order.    
A second form of decentralization that will perhaps be more 
controversial is jurisdictional.  Here the American example is most 
useful—just because I know more about it.  If localities had the 
power to admit refugees, America might actually be able to do human 
rights.  California, Illinois, New York, Austin, Bloomington, 
Houston, Chicago, Los Angeles, Minneapolis.  If these Sanctuary 
Cities and states had the power to actually express their policy 
preferences and admit refugees, not only could we do human rights, 
but we could build evidence that we can do human rights, and nurture 
the moral foundation of human rights in certain redoubts, even when 
the median voter is unpersuaded of their importance.  Doing human 
rights, voluntarily, helps us do more human rights. Pushing human 
rights down from the national level means doing more human rights, 
deepening our global commitment to human rights. Or, that’s my 
theory of revelation, anyway.   
 


Revelation out of Rupture: Building Human Rights from the Bottom Up

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