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The Fatal Leviathan: A Hayekian Perspective of Lex Mercatoria in Civil Law Countries
Get PDFWho should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria
Leahy—Sharpening the Blade
Get PDFOver the course of the last 20 years, the Leahy Law has become one of the cornerstones of foreign and human rights policy. Yet, despite its largely unchallenged importance, field practitioners and other stakeholders have identified a number of substantive and practical deficiencies that greatly diminish the law’s ability to achieve the desired effect, and worse, may pose a risk to the United States’ interests. In reflecting on these deficiencies, and armed with decades of data and anecdotal evidence, this Article proposes adjustments focused on better aligning the law’s intent and effect. These recommendations range from semantic edits to substantive policy changes which may affect the way that Leahy operates in substantial ways. We should not fear revisiting the original intentions now that we have seen how the law operates. Like all things, the Leahy Law must be continually improved or it risks becoming an empty remnant of its former self. America needs to be a world leader in the area of human rights, but it requires functional tools in order to do so. Congress needs to sharpen the blade and it’s the author’s hope that, by implementing the changes presented in this Article, it can do just that
Enter at Your Own Risk: Criminalizing Asylum-Seekers
Get PDFIn 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 quasistate 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 longterm 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 asylumseekers 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-orbanhungary-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
Extending the Technology Acceptance Model to Adopting ECG Wearable Authentication Devices
No full textThe availability, affordability and pervasiveness of mobile and wearable devices is at an all-time high. New applications are constantly being developed and deployed to increase the functionality and usefulness of wearable devices in order to enhance and improve quality-of-life areas such as communications, workplace productivity, electronic commerce, personal fitness, and healthcare. At the same time, the increasing magnitude of security breaches, including sophisticated hacking methods, ransomware, malware and phishing attacks, have reached alarming levels. Fortune 500 companies and government institutions are at the forefront of such breaches. In most incidents, Personally Identifiable Information (PII) was compromised, such as login credentials, credit card information and healthcare records (Berghel, 2017; Bonner, 2012; Armerding, 2018). In spite of the availability of tools to protect our records, such as the use of multi-factor authentication protocols, possession protocols, or inherence protocols, the threat remains persistent. My research will attempt to understand how the workplace and societal perceptions of wearable ECG-based authentication will ultimately impact how readily a new form of mobile technology will be adopted within the workplace. The framework of this research is based on extending the Technology Acceptance Model into ECG-based wearable authentication devices in order to define and evaluate whether such devices will be accepted and used to the extent possible to prevent fraudulent activities by validating identity, granting access or authorizing usage. Furthermore, this research will gather data from participants in a field study, irrespective of their demographic profile so as to gain insights into user-specific perceptions of interacting with an ECG-based wearable form of technology and will assess the users’ perceptions of the technology as it relates to ease of use, perceived usefulness and the workplace factors that influence usage decisions. A theoretical model featuring 12 hypotheses was developed and tested against the empirical data collected using a survey instrument. A measurement model was established using structural equation modelling with partial least squares to validate the hypotheses. Findings of this research confirmed the hypotheses suggesting that the Technology Acceptance Model indeed offers a suitable, robust and predictive framework for the acceptance of ECG-based wearable authentication devices in the workplace
Learning from Feminist Judgments: Lessons in Language and Advocacy
Get PDFThis essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing a written decision that differs from the original can help students think “outside the box” constructed by the original opinion by showing them a concrete example of another perspective written in judicial language. An alternative judgment tangibly illustrates for students that the original decision was not inevitable and that other perspectives are not only possible but legitimate. This method of introducing a new perspective is different and, we argue, more powerful than assigning a scholarly article that requires students to “transfer” scholarly language to judicial language. Second, the rewritten judgments show law’s potential to change and its ability to serve different accounts of justice. So many of our students come to law school wanting to “change the world” and become disheartened; alternative judgments can be an antidote to defeatism and cynicism.
Third, alternative judgments counter the narrative that law is objective while other arguments are political or biased. Simply by comparison with the original opinions, the alternative judgments demonstrate that judges, like other human beings, draw on what has been embedded in their intuitions and reasoning processes by culture and history as well as by their own backgrounds, experiences, and education. Fourth, feminist judgments provide tools for students to understand how persuasion and explanation are able to work effectively—in many different guises—even within the significant conventions and constraints of legal practice. Finally, but by no means least important, alternative feminist judgments are one of the only ways that “outsider” students—those whose perspectives have been historically erased or marginalized in law—can see themselves and their lived experiences reflected in the law
Sex Trafficking: A Pilot Study of Trafficked Victims
No full textSex trafficking has become one of the largest industries in the United States and the world. This modern day slavery knows no limits, targeting women and men, girls and boys, of all cultures and backgrounds. Many think that sex trafficking only occurs in foreign countries, but it occurs more often in the United States than believed. There are many risk factors and protective factors for potential victims. Risk factors include having a trauma history, a history of running away from home, abuse in the home, and homelessness. Protective factors include a supportive community, education, and access to mental health resources. With continued research, personal experiences can be explored and new interventions can be developed in order to prevent future trafficking. The purpose of this study is to explore sex trafficking from the lens of the survivors leading to the development of a new intervention program. Findings from this pilot study identified risk factors including complex trauma in the home, such as sexual and physical abuse, conflict and feeling alone, homelessness, running away from home, and low socioeconomic status. Preventative factors identified included more education for those employed in helping fields including doctors, nurses, EMS, and police officers. Further, I participants desired prevention programs such as sex education, shelters for runaways, and mental health programs. This study found that many victims suffer from post-traumatic stress disorder, experiencing flashbacks and depression. Many of the victims identified high rates of distress and anxiety as a result of their trauma
