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Forthcoming

Volume 79:3

Abortion Rights and Disability Equality: A New Constitutional Battleground
Authors: Allison M. Whelan & Michele Goodwin

Abstract:

Abortion rights and access are under siege in the United States. Yet even while current state attacks have taken on a newly aggressive‑scale and scope—emboldened by the United States Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. However, the legal landscape in the wake of Dobbs has been decades in the making.  In this Article, we analyze the pre‑ and post‑Roe landscapes, explaining that after the Supreme Court recognized a right to abortion in Roe in 1973, anti‑abortionists sought to dismantle that right, first piece by piece and now whole cloth. As we explain, these concerted efforts impose unique and uniquely burdensome harms on those living at the intersections of historically marginalized and vulnerable identities, including persons of color, low‑income populations, persons with disabilities, and individuals within the LGBTQ+ communities. This Article examines the deeply troubling—and now successful—efforts to dismantle Roe and the legal attacks on reproductive freedom. It foreshadows continuing legal efforts to gut abortion rights and new battlefronts related to LGBTQ+ equality and disability justice emerging from the same efforts. Focusing on persons with disabilities, this Article argues that the political movement to deny abortion rights will sweep to eviscerate gains made toward disability justice, as well as many other social justice issues such as LGBTQ+ equality.

Understanding Xenophobia as Intersectional Discrimination
Author: Shreya Atrey

Abstract:

This essay 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.


G(local) Intersectionality

Author: Martha F. Davis

Abstract:

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 the concept of intersectionality into their law and practice as part of implementing international anti‑discrimination 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 (CERD).

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, the cities of San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to non‑discrimination 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.


Sexual Violence, Intangible Harm, and the Promise of Transformative Remedies

Author: Jill C. Engle

Abstract:

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 towards 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.


Murdering Crows: Pauli Murray, Intersectionality, and Black Freedom
Author: Lisa A. Crooms-Robinson

Abstract:

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 which violated 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 essay 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.


Rurality as an Intersecting Axis of Inequality in the Work of the UN Treaty Bodies
Author: Amanda Lyons

Abstract:

Rurality intersects with other identities, power dynamics, and structural inequalities — including those related to gender, race, disability, age, and others — 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 UN 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 cross‑cutting look at rurality, biases or assumptions remain hidden and unchallenged.

This Article addresses that gap by analyzing the treatment of rurality in two UN human rights treaty bodies: the Human Rights Committee (HRC) and the Committee on Economic, Social, and Cultural Rights (CESCR). 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 (1) 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; (2) 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 (3) that, in practice and with very few exceptions, rurality is only acknowledged or named in the assessment of countries in the Global South.


The Three Laws: The Chinese Communist Party Throws Down the Data Regulation Gauntlet
Author: William Chaskes

Abstract:

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 provides 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.


Mass Arbitration 2.0
Author: Andrew Nissensohn

Abstract: 

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 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 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 did before them— compiling thousands of nearly identical claims and filing demands for individual arbitration en masse.

 

This Note begins in Part I by documenting the Arbitration Revolution, whereby defense‑side interests strategically dismantled the civil litigation system. Part II then proceeds to the immergence of Mass Arbitration and the initial responses of corporate‑interests to it. 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 do so still remains unanswered. Part III looks to Mass Arbitration 2.0 and details analyzes two potential paths under current Supreme Court precedent. As Amazon recently did, businesses might throw in the towel and return to the conventional civil litigation system. Alternatively, they “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.

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