University of California Hastings College of the Law
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How European Human Rights Law Will Reshape U.S. Business
No full textIn recent years several European states have enacted human rights due diligence laws, culminating in the imminent EU-wide Corporate Sustainability Due Diligence Directive.
This article provides a comprehensive analysis of these laws and explores their potential impact on U.S. businesses. Human rights due diligence emerges from the United Nations Guiding Principles on Business and Human Rights (2011) and was originally conceived as a voluntary means by which corporations could demonstrate that they proactively monitor and manage potential human rights abuses within their corporate group and supply chains. Since 2017, European states have begun enacting binding human rights due diligence laws. These laws are innately extraterritorial in nature, designed to ensure that corporations that operate in the European market comply with human rights standards throughout their value chain, including through their suppliers and business partners. The emergence of European due diligence laws will thus impact U.S. businesses and industries: an estimated 10,000 U.S. businesses will be directly affected, and far more will have to comply as a result of supplying or partnering with EU-based firms. The effect on U.S. business could be dramatic, particularly with major divergences between the EU and United States in relation to labor law and other legal regimes. The article analyzes how U.S. businesses will be affected, what businesses may need to do, and how divergent legal regimes may be addressed. It further discusses options for the U.S. Government to take a proactive approach to the European incursion on U.S. law and business in the interest of protecting rights while providing business certainty
Rethinking the Fundamentals: Applying The Evolving Standards of Decency Test To The Court’s Evaluation of Fundamental Rights.
No full textIn 1910, the Supreme Court recognized in Weems v. United States that a constitution “must be capable of wider application than the mischief which gave it birth.” This principle led to the creation of the Court’s two-pronged “evolving standards of decency,” test: (1) evidence of an objective indicia of a national consensus, and (2) the reviewing court’s own independent judgment. To this day the Court has yet to apply this test outside of the Eighth Amendment context. But can the “evolving standards of decency,” test identify and protect other fundamental rights? This Article explores how the Court could apply the “evolving standards of decency” test to determine fundamental rights under the Fourteenth Amendment’s Due Process Clause and provide more robust constitutional protections for LGBTQ+ rights. Specifically, it applies the test to Lawrence v. Texas and Obergefell v. Hodges to show how it would distinguish and affirm the respective protections found in those cases. This new application would not change the Court’s current “history and tradition” test for fundamental rights, but rather it reimagines how to view history and tradition when we seek to determine which rights are fundamental in contemporary society. As the Court continues to restrict substantive due process rights—and explicitly put the rights discussed in Lawrence and Obergefell at risk—the “evolving standards of decency,” test offers advocates a new approach to protect marginalized communities within this narrow framework
Unprecedented: Asian Americans, Harvard, the University of North Carolina, and the Supreme Court’s Striking Down of Affirmative Action
No full textIn response to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al. (“SFFA v. Harvard”),1 author Harvey Gee urges his fellow Asian Americans––the star plaintiffs in the case and depicted as the main beneficiaries of its holdings–– to fight back to preserve affirmative action. Part I explores how the Court’s approach to affirmative action changed from the emergence of the Civil Rights Movement through many of the pivotal affirmative action cases prior to the 2010s. Part II then seeks to contextualize the struggle over the role of affirmative action within the Asian American community. It delves into two core mythologies that haunt these discussions––the Perpetual Foreigner Myth and the Model Minority Myth. Readers need a basic understanding of these mythologies because Part III focuses on Fisher v. University of Texas: a case that illustrates how activists and one dubiously sympathetic Justice would later tokenize Asian Americans in their efforts to dismantle affirmative action. Part IV dives into SFFA v. Harvard itself to show how the Court discarded affirmative action precedent and the arguments the dissenting Justices deployed to point out the decision’s weaknesses. Finally, the article ends by advocating for interracial solidatry to resist further attacks on the hallmark achievements of the Civil Rights Movement
