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Washington and Lee Law Review - Print Edition


by Shreya Atrey

This Comment examines the nature of xenophobia and why it seems to fall through the cracks of international human rights law, especially as a form of racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination. It considers an understanding of xenophobia as a sui generis case of intersectional discrimination because it has to do with racial grounds but also perhaps other grounds (such as nationality, religion, language, culture, and class), which makes it difficult to disentangle the basis of xenophobic discrimination as based on strictly racial grounds alone.


by Martha F. Davis

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination.

This “relocalization” phenomenon—which brings intersectionality back to its roots in domestic law—is visible in many parts of the world. In Europe, cities in Spain proactively integrate intersectional approaches into their local human rights regimes. Outside of Europe, Montréal applies an intersectional analysis under its Charter of Rights and Responsibilities, a local governance document grounded in the values of fundamental human rights and dignity. Human rights cities like Gwangju, Korea, embrace intersectionality as a programmatic imperative. In the United States, San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to nondiscrimination in the wake of adopting local CEDAWs.

The relocalization process is not always straightforward. Challenges include the difficulties of reconciling local intersectional approaches with national laws that may not recognize intersectionality, and developing indicators tailored to local experiences. On the other hand, local adoption of intersectionality opens up robust possibilities for participation in communities’ legal and political processes, which many local governments emphasize.


by Jill C. Engle

This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused harm. Although transformative justice has developed outside the legal system, its principles and methods are targeted toward the unique, often intangible harms experienced by sexual violence survivors. Therefore, transformative justice remedies should be available alongside and inside the legal system so survivors, their impacted communities, and those who cause harm can benefit from them.


by Lisa A. Crooms-Robinson

What is intersectionality’s origin story and how did it make its way into human rights? Beginning in the 1940s, Pauli Murray (1910–1985) used Jane Crow to capture two distinct relationships between race and sex discrimination. One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women’s experiences and rights deprivations at the intersection of race and sex. Both Janes were based on Murray’s fundamental belief that the struggles against race and sex discrimination were different phases of the fight for human rights.

In 1966, Murray was part of the American Civil Liberties Union team that litigated White v. Crook. In White, a three-judge federal district court panel declared Lowndes County, Alabama’s jury selection process discriminated against the county’s Black residents based on both race and sex in violation of the Fourteenth Amendment. What appeared to be an intersectional victory for Black women, was, in fact, an analogical victory for white women. The reasoning and the remedy erased the Black women litigants and the Lowndes County Black Freedom Movement, both of which were essential to the litigation.

By situating White in the context of the Lowndes County movement, this Article demonstrates the centrality of Black feminist praxis to the county’s Black Freedom politics. The women in the movement took aim at Jane Crow which personified their intersectional experiences. Freedom for the county’s Black female majority did not require white women’s subjugation. By contrast, white women’s equality was a claim to share power with white men which included the power to maintain Jim and Jane Crow. Therefore, intersectional Jane and analogical Jane were on opposite sides of the fight for Black freedom in Lowndes County where white Jane’s equality required Black Jane to remain unfree.


by Amanda Lyons

Rurality intersects with other identities, power dynamics, and structural inequalities—including those related to gender, race, disability, and age—to create unique patterns of human rights deprivations, violations, and challenges in rural spaces. Therefore, accurately assessing human rights and duties in rural spaces requires attention to the dynamics of rurality in a particular context, the unique nature of diverse rural identities and livelihoods, the systemic forces operating in and on those spaces, and the intersections with other forms of structural discrimination and inequality.

Although much of the work of the U.N. treaty bodies has in fact addressed human rights situations in rural areas, the role of rurality as an intersecting axis of structural inequality in those cases has not been systematized. There have been important advances related to rurality, intersectionality, and human rights, but these remain largely invisible to researchers and advocates and from one human rights body to another. Without this crosscutting look at rurality, biases and assumptions remain hidden and unchallenged.

This Article addresses that gap by analyzing the treatment of rurality in two U.N. human rights treaty bodies: the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. The aim is to contribute to further engagement with the role of rurality and spatial justice in intersectional approaches to human rights research, policy, and advocacy. The research documents several trends, including (i) the important impact that global agrarian movements have had in achieving recognition of rural difference and rural-specific human rights claims beyond merely measuring urban-rural disparities; (ii) that rurality is most frequently acknowledged in connection with the rights of women, reflecting the sustained work of women’s rights advocates to showcase that intersection, among other dynamics; and (iii) that, in practice and with very few exceptions, rurality is only acknowledged or named in the assessment of countries in the Global South.


by William Chaskes

Criticism of the Chinese Communist Party (CCP) runs a wide gamut. Accusations of human rights abuses, intellectual property theft, authoritarian domestic policies, disrespecting sovereign borders, and propaganda campaigns all have one common factor: the CCP’s desire to control information. Controlling information means controlling data. Lurking beneath the People’s Republic of China’s (PRC) tumultuous relationship with the rest of the world is the fight between nations to control their citizens’ data while also keeping it out of the hands of adversaries. The CCP’s Three Laws are its newest weapon in this data war.

One byproduct of the CCP’s emphasis on controlling the narrative is that analyzing the PRC’s laws and policies requires reading between the lines—in the dark, by candlelight. Even the most informed analysis requires assumptions. The Three Laws are no different. Their broad language, drastic penalties, and sweeping scope rule out the traditional tools of statutory interpretation. Ordinary meaning, canons of construction, and legislative history are useless. In the PRC, the law means what the CCP says it means. To understand the Three Laws and predict the associated regulatory risks, lawyers, economists, and politicians alike must think and reason by analogy.

This Note offers analyses, case studies, and recommendations that provide practitioners a solid framework to assess a company’s regulatory risk under the Three Laws. First, this Note outlines the guiding tenets of the CCP to understand the motivations behind the Three Laws. Next, it provides case studies of different companies’ relationships with the CCP. Realizing how the CCP has dealt with some of the largest companies in the world—Ant Group, Didi Chuxing, Apple, Tesla—is crucial to understanding the threat of future capricious CCP action.

This Note then analyzes alleged CCP hacking campaigns and global influence building so the reader may better understand the types of actions that the CCP undertakes—and fears being done to it by others. Finally, this Note provides recommendations for companies with different levels of exposure to the CCP and its ability to enforce its laws. Ultimately, this Note provides the reader with a primer on an important geopolitical issue: the shadowy battle between the world’s great powers to control their citizens’ information, procure their adversaries’ data, and the ways that the law is being used to further these goals.


by Andrew B. Nissensohn

Over the past four decades, corporate interests, in concert with the Supreme Court, have surgically dismantled the American civil litigation system. Enacted nearly a century ago, the Federal Arbitration Act (FAA) was once a procedural law mandating that federal courts enforce arbitration agreements between sophisticated parties with equal bargaining power. Through death by a thousand cuts, corporate interests shielded themselves from nearly all methods of en masse dispute resolution. These interests weaponized the FAA into a “one size fits all” means to compel potential litigants with unequal bargaining power into arbitration. The so-called “Arbitration Revolution” is the subject of much scholarly literature, but a nascent offspring of the Revolution is forcing corporate interests to retreat from their decades-long crusade—Mass Arbitration.

In recent years, aggrieved plaintiffs, shackled by mandatory bilateral arbitration agreements, took matters into their own hands. Armed with highly-capitalized law firms and frequently untapped arbitration provisions, plaintiffs acquiesced to corporate demands and filed their disputes in arbitration. But this time they did it differently than others before them: compiling thousands of nearly identical claims and filing demands for individual arbitration en masse.

Part I of this Note documents the Arbitration Revolution, whereby defense-side interests strategically dismantled the civil litigation system. Part II then proceeds to the emergence of Mass Arbitration and the initial responses of corporate interests. Importantly, this is a snapshot in time— it is inevitable that the defense bar will adapt to this dramatic change in the litigation sphere. But the question of how they will do so remains unanswered. Part III looks to Mass Arbitration 2.0 and details analyzes two potential paths under current Supreme Court precedent. Businesses might throw in the towel and return to the conventional civil litigation system, as Amazon recently did. Alternatively, they might “tighten the screws” and eliminate “saving grace” consumer-friendly terms that arguably kept their arbitration agreements afloat when challenged. Given the uncertainty of this response, Part IV proposes concrete actions needed to reverse the decades-long misguided interpretation of the FAA and safeguard the rights and interests of consumers and employees throughout America.


by Mitchell F. Crusto

The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no unifying term or concept for this moving force that has guided our constitutional development.

This Article seeks to redefine our rights to individual liberties through a concept that I call “Right of Self.” It introduces the concept of Right of Self as the legal recognition and protection of a person’s attributes or identity, including one’s labor; name, image, likeness (NIL); and other unequivocal identifiers. It is critical to clearly define this fundamental principle and embrace it as a protected right for several reasons, but mainly because modern technology has increased the number of ways in which the self is being expropriated, for example through the abuse of facial recognition technology. Without Right of Self, the powerful–often with the government’s tacit or direct support–can exploit people without restrictions or compensation. To illustrate this point, this Article analyzes a contemporary case of government-assisted, “private” taking of Right of Self that concerns a particular and vulnerable group of people: college student athletes.

This Article argues that Right of Self is an inherent, fundamental, and constitutionally based right of every person in America. It shows how the failure to embrace and protect that right has resulted in a particular form of inequity, which I call “intergenerational wealth displacement.” This inequity is rooted in race, gender, status, age, and class differences. To redress it, this Article proposes a model code that policymakers should adopt to recognize Right of Self as a fundamental right and to broadly apply it to protect people from the exploitation of their name, image, and likeness.


by Reid Kress Weisbord and David Horton

Recently, the #FreeBritney saga cast a harsh spotlight on state guardianship systems. Yet despite their serious flaws, guardianship regimes have benefited from waves of reform. Indeed, since the 1970s, most jurisdictions have taken steps to protect the autonomy of people with cognitive, intellectual, or developmental disabilities (CIDD). Likewise, lawmakers are currently experimenting with supported decision-making (SDM): an alternative to guardianship designed to help individuals with CIDD make their own choices. These changes are no panacea, but they have modernized a field that once summarily denied “idiots” and “lunatics” power over their affairs.

However, in a related context, the legal system’s treatment of individuals with CIDD remains rooted in the past. Since the sixteenth century, judges have voided wills executed by owners who lack testamentary capacity. This Article reveals that this notoriously problematic rule has resisted the progressive forces that have swept through guardianship law. The Article then offers fresh insight into how parties litigate testamentary capacity claims by reporting the results of a study of 3,449 estates from California. Finally, the Article analyzes several unsettled doctrinal issues, such as whether testators have due process rights to participate in adjudications of their own competence, the relationship between SDM and will-making, and the appropriate capacity test for nonprobate transfers.


by Albert C. Lin

In recent months, dozens of countries and thousands of businesses have pledged to achieve net zero greenhouse gas emissions. However, net zero often means different things to different entities, and it is often uncertain how net zero pledges—which set targets years or decades from the present—will be met. This Article considers the motivations behind net zero pledges, highlights the underappreciated role of carbon removal in net zero efforts, and identifies mechanisms for encouraging the accomplishment of net zero goals. Two key strategies are essential to making net zero targets matter. First, society should develop and implement accountability and enforcement mechanisms to promote follow through on net zero commitments. These mechanisms include disclosure standards, benchmarks, contractual arrangements, and legal claims under securities and consumer protection laws. Second, net zero pledges should incorporate distinct targets for emissions reduction and carbon removal. Carbon mitigation and carbon removal differ in significant ways with respect to verifiability, permanence, readiness, and risks. Distinguishing carbon mitigation and carbon removal in net zero goals is essential to avoid undermining efforts to achieve climate goals, shifting the burdens of climate action to vulnerable populations or future generations, and increasing societal, health, and environmental risks.