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Cost-Benefit Analysis and Human Rights
Get PDFThis Article considers whether cost-benefit analysis can provide the human rights movement with the answers it seeks. It offers an instrumentalist and empirical approach to complement the normative arguments that are most often used by the human rights movement. If human rights could be fully monetized, states could consider the full range of benefits that arise from protecting rights and the costs that occur when rights are violated. This approach could provide states with a more accurate methodology for making decisions that affect human rights. In fact, protecting human rights may prove to be cost-effective, particularly when second order costs are considered, thereby offering a compelling argument for their defense
Interrogation or Experimentation? Assessing Non-Consensual Human Experimentation During the War on Terror
Get PDFThe prohibition against non-consensual human experimentation has long been considered sacrosanct. It traces its legal roots to the Nuremberg trials although the ethical foundations dig much deeper. It prohibits all forms of medical and scientific experimentation on non-consenting individuals. The prohibition against non-consensual human experimentation is now well established in both national and international law.
Despite its status as a fundamental and non-derogable norm, the prohibition against non-consensual human experimentation was called into question during the War on Terror by the CIA\u27s treatment of high-value detainees. Seeking to acquire actionable intelligence, the CIA tested the theory of learned helplessness on these detainees by subjecting them to a series of enhanced interrogation techniques.
This Article revisits the prohibition against non-consensual human experimentation to determine whether the CIA\u27s treatment of detainees violated international law. It examines the historical record that gave rise to the prohibition and its eventual codification in international law. It then considers the application of this norm to the CIA\u27s treatment of high-value detainees by examining Salim v. Mitchell, a lawsuit brought by detainees who were subjected to enhanced interrogation techniques. This Article concludes that the CIA breached the prohibition against non-consensual human experimentation when it conducted systematic studies on these detainees to validate the theory of learned helplessness
The Rise of Self Sidelining
Get PDFThis Article coins the term self sidelining as an experience emanating from two theories: impostor phenomenon and gender sidelining. The impostor phenomenon is a well-established psychological construct that describes the inability of some high-achieving women and men to internalize success. Gender sidelining, recently popularized in legal scholarship, describes the undermining of women\u27s achievements, as compared to men, that are unactionable as legal discrimination. In view of these theories, this Article contends that when internal fraudulent feelings (imposter phenomenon) are perceived to be externally validated by male gender preference (gender sidelining), women consciously or subconsciously discipline themselves to forgo their professional advancement. This false endorsement of inadequacy leads women to self sideline. Despite significant advances in legal theories and protections for traditionally diverse and underrepresented groups, there are still notable areas where the law is absent to balance injustices and compel inclusivity. Ultimately, this Article exposes the social harm of self sidelining, even absent adequate legal remedies, and urges its awareness and presence in the ongoing gender inequity discussion in the legal profession
STANDARD OF PROOF, PRESUMPTION OF INNOCENCE, AND PLEA BARGAINING: HOW WRONGFUL CONVICTION DATA EXPOSES INADEQUATE PRE-TRIAL CRIMINAL PROCEDURE
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Administrative Guidance and Genetically Modified Food
Get PDFOne of the most controversial issues in administrative law, the use of guidance, is exemplified by the regulation of one of the most controversial areas in modern society: genetically modified (GM) food. The appropriate use of guidance versus notice and comment rulemaking is a much-debated issue in administrative law. While agency officials generally assert that they are using guidance to express an agency’s thoughts about how to comply with a specific statutory provision or agency rule, the practical consequence is that the regulated party will hesitate to disobey, even if it believes that the guidance goes beyond the requirements of the statute or rule. The Food and Drug Administration’s (FDA) regulation of GM food through a guidance document provides a prime example of this effect: the document recommends a premarket review process that the FDA describes as voluntary for firms attempting to bring a new product to market. The reality is that regulated parties feel compelled to comply. This is a controversial and questionable result because many types of genetic modifications are well understood and pose no safety issues; the scientific consensus is that GM foods currently available are as safe as non-GM foods. This situation raises the central issue addressed by this Article: how to determine whether an agency is appropriately using guidance, or whether the agency should be required to use notice and comment rulemaking. After discussing why the current theoretical approaches, interpretation and bindingness, are inadequate to solve this problem, this Article proposes a new theoretical framework in which to answer this question of public controversy to determine when informal rule-making with notice and comment is advantageous and even required by the Administrative Procedures Act (APA). This new theoretical framework is then applied to the controversial issue of GM food
A Title IX Conundrum: Are Campus Visitors Protected from Sexual Assault?
Get PDFSexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. However, over the past several years, a handful of courts in the United States have rendered opinions that have defined, and effectively narrowed, the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students, or put another way, insiders and outsiders. This Article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: To whom does Title IX apply? Should universities extend greater safety protections to those who are officially a part of an institution like students, faculty or staff as opposed to those who are not? Are non-students and other individuals who temporarily interact within the university context simply left out of the spectrum of Title IX protections? What sort of campus safety dynamic exists if certain classes of victims are denied access to Title IX? After extensive analysis, this Article ultimately concludes that facilitating safer campus communities likely demands an extension of Title IX rights to those individuals who participate in campus life, regardless of their official connection to the university
