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Gender Apartheid Under the Taliban: Key Elements of an Ideology Designed to Disempower Afghan Women
No full textDespite its frequent use since 2021, the notion of ‘gender apartheid’ is misconceived in terms of existing international law. The type of abhorrent policies pursued by the Taliban regime against women and girls is best conceived as gender-based persecution. Even so, there is no reason why a new and distinct international crime of gender discrimination cannot be established through soft law, domestic law, or treaty-making in order to preserve the plight of women and girls around the world who are subjected to collective discriminatory practices that deny them fundamental human rights. The crime would arise where the discriminatory practices in question reach a level of institutionalized discrimination with the aim of dominating the victim group. In the case of the Taliban, this institutional discrimination is derived from cultural practices and interpretations of particular religious beliefs that have culminated in various forms of gynophobia and objectification of women. By providing insights on the misogynistic ideological bases at the heart of Taliban policies towards women and girls, the Article allows policymakers engaging with the Taliban an opportunity to better frame human rights arguments
History\u27s Identity Crisis
No full textLower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding—generalized and closer to policy— such that we want appellate judges to make the calls after studying in the law library or digesting dozens of amicus briefs? Each alternative identity carries significant practical litigation consequences, and—because of those consequences—the players are motivated to manipulate the different labels in strategic ways.
I call for some nuance and “bottom-line thinking”: if what really matters is who makes the decision and under what conditions, then we should ask that question directly and specifically rather than getting hung up in definitions and labels. This Article assumes a good-faith judge confronting a history-based test in the Second Amendment context and then offers a way to help: by detangling this identity crisis, exploring the implications of each alternative identity, and then offering preliminary thoughts on a possible path forward
Machik in Washington, D.C.
No full textGwyneth Smith [1L] will contribute to Machik’s goal of charting new pathways forward for the global Tibetan community by respecting the standpoint of others and appreciating our responsibilities to our collective human future
Presuming Justice for Temp Workers
No full textWorkers need to know who their employers are. Who is responsible for remedying workplace dangers? Who can they sue for restitution when they are discriminated against at work, or do not get paid for all of the hours they work? Temp agency contracts complicate these seemingly simple questions. In workers’ rights cases involving “temps,” courts and administrative agencies often engage in protracted, resource-intensive joint employer inquiries to decide whether the temp agency clients share in employer obligations and liabilities with the agencies. This is the case even when the temp agency client has the key markers of an “employer,” such as directly supervising all of the activities of a temp worker on a daily basis. This Article analyzes a first-of-its-kind dataset of thirty-two contracts between leading temp agencies and their clients in blue-collar work. The analysis shows that temp agency contracts often give clients enough control over temporary workers to give rise to employer status and responsibilities under workers’ rights laws. This empirical finding sets the foundation for courts and administrative agencies using contract terms to trigger a legal presumption that a client of a temp agency is a joint employer of the temporary workers provided to them for statutory and collective bargaining purposes. Through its unique empirical lens, this Article offers and justifies a joint employer presumption. This intervention is a practical, necessary correction that will expose meritless attempts to contract out of employer responsibilities
Constructing an Effective Whistleblower Statute: Virginia Is Nearly There
No full textWhistleblowers are pivotal in ensuring transparency and accountability in numerous public and private industries. They ensure that existing laws are enforced and hold employers accountable when they seek to evade them. Recognizing the significant value provided by whistleblowers, and that private actors within organizations are often in a better position than government enforcement officials to uncover wrongdoing, Virginia has enacted several whistleblower protection statutes, including the Virginia Whistleblower Protection Law (VWPL), which advocates lauded for “provid[ing] broad protections against retaliation and fundamentally alter[ing] the landscape for” Virginia whistleblowers.
While the VWPL seems promising, two provisions of the law, its statute of limitations and the remedies available to those who bring successful claims, are deficient in ways that discourage reporting of illegal activity under the statute. House Bill 770, which would have amended the statute of limitations and remedies provisions of the VWPL, offered a fair starting point for addressing the statute’s deficiencies. Unfortunately, while Virginia’s House and Senate passed the bill, Governor Youngkin ultimately vetoed it.
This Note discusses the efficacy of the VWPL compared to other whistleblower statutes and suggests best-practice recommendations for creating functional whistleblower laws. Part I provides a brief overview of federal whistleblower laws, including the benefits provided to the public by robust whistleblower protections, the key requirements of effective whistleblower statutes, and the need for whistleblower protections at the state level. Part II discusses the nature of employment relationships in Virginia prior to the VWPL’s passage and summarizes the necessary elements of a VWPL claim. Part III examines the VWPL’s strengths—the provisions of the law that increase access to whistleblower protections. Part IV discusses the VWPL’s weaknesses and how they diminish the statute’s effectiveness. Finally, Part V examines House Bill 770’s proposed amendments to the VWPL and argues for its eventual passage into law.
This abstract has been taken from the author\u27s introduction
Animus, Again
No full textIn the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.
One of those tools is equal protection animus. This Article considers the prospects for equal protection animus-based challenges to the actions already taken and those that may follow in the months and years ahead. Relying on the Supreme Court’s surprising revival and regularization of the animus idea in 2020, it applies this evolving doctrine to the Administration’s early actions in the immigration and transgender rights areas. It concludes, tentatively, that animus can play a useful role in equality litigators’ toolkit.
Beyond explaining how the animus idea can assist in challenges to the Administration’s early actions, this Article also provides guidance on how litigators and others can challenge other equality- and rights-infringing actions the Administration may take in the future. It concludes by reflecting on the substantive, political, and rhetorical appropriateness of deploying animus-based arguments in the current national moment
The ESG Paradox: Systemic Resistance and the Crisis of Corporate Governance
No full textThis Article examines a recent lawsuit between ExxonMobil Corporation and its shareholders that contested the definition of “ordinary business operations” under Rule 14a-8 of the Securities & Exchange Act of 1934. Through the lens of Niklas Luhmann’s systems theory particularly his concept of “operational closure,” the analysis reveals how corporate resistance to ESG initiatives reflects deeper systemic patterns in late capitalist governance.
ESG frameworks emerged as a challenge to neoliberal corporate governance, promising to address mounting environmental and social concerns. However, the neoliberal model has responded by both absorbing ESG through “greenwashing” and rejecting its more transformative elements—a pattern that exemplifies the maladaptive tendencies of systemic operational closure. Beyond simply challenging corporate environmental and social policies, ESG has precipitated an epistemic crisis within corporate governance itself. This crisis has intensified neoliberal ideology’s resurgence, particularly its commitment to shareholder primacy, manifesting in governance strategies that reduce ESG to mere financial metrics. The resulting tension exposes fundamental questions about the core assumptions of traditional corporate governance models