Category: Working Papers

The Perplexities of the Rights of Nature

by Lindsay Stern

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Abstract:

This paper examines the potential implications of Hannah Arendt’s critique of human rights in The Origins of Totalitarianism (1951) for contemporary environmental rights discourse. Reflecting first on canonical, but refreshingly strange early modern European formulations of “personhood,” the paper suggests that advocacy projects on behalf of nonhuman animals and environments court the same paradoxes Arendt identified. In that respect, the paper proposes that Arendt’s critique of human rights is less anthropocentric than prominent strains of its reception suggest. Considering Arendt’s critique against her discussion of “earth alienation” in The Human Condition (1958), the paper then frames Arendt’s account of legal personhood as an attempt to “speak from nowhere.” It concludes by tracing the first stirrings of Arendt’s development of the notion of this “nowhere” to an early, unpublished poem.

Keywords: Human rights, environmental discourse, Anthropocene, Hannah Arendt, legal personhood

About the author:

Lindsay O’Connor Stern is a writer and scholar of comparative literature. She is the author of two novellas including Town of Shadows (Scrambler Books 2012), which was adapted into a dance. Her novel The Study of Animal Languages (Viking/Penguin Random House, 2019/2020), an Amazon Editors’ pick, won a Lois Kahn Wallace Award and the Taylor-Chehak prize in fiction from the Iowa Writers’ Workshop. Her essay, “In Praise of Socks: the ‘Poetic’ in Wittgenstein” won the 2023 Ralph Cohen Prize from New Literary History. Another essay, “The Divide,” was the cover story of Smithsonian Magazine’s July/August 2020 issue and was nominated for a National Magazine Award. She has received an Academy of American Poets Prize, an Amy Award, a Watson Fellowship, and the Austin Sarat Prize from the Association for the Study of Law, Culture, and the Humanities. She is a Postdoctoral Fellow at Harvard University’s Mahindra Humanities Center.

Prisoner of the Book: The Living Constitution and Borges’ Book of Sand

by Ana Van Liedekerke

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Winner, Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice (2023)

Abstract:

This paper uses Jorge Luis Borges’ short story The Book of Sand (1975) to examine the aversion of Constitutional originalists in the United States to the idea of the Constitution as a living text. Contrasting Justice Antonin Scalia’s rhetoric of magic as used to denounce the “living Constitution” with Justice William J. Brennan’s conception of an originalist Constitution as a ghost terrorizing the present, the paper asks what vision of the text these metaphors construct, and how they make the Constitution of the other into a “nightmarish” object.

Keywords: Law and literature, living Constitution, Originalism, Constitutional theory, (Constitutional) rhetoric.

About the author:

Ana Van Liedekerke is a PhD student at the Institute of Philosophy at KU Leuven in Belgium. Ana studies the intersection of narratology and constitutional theory. Her dissertation, funded by the Research Foundation – Flanders, investigates the textual agency of constitutions, emphasizing the power of texts to constitute democratic communities. She earned a Masters of Philosophy and Western Literature at KU Leuven, and she has held visiting positions at King’s College London, Stellenbosch University, and Yale University.

Reimagining Antisubordination from the Global South: Towards a Joint Venture Theory of Legal Interpretation

by Taís Penteado

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Winner, Audre Rapoport Prize for Scholarship on Gender and Human Rights (2023)

Abstract:

The present article is dedicated to showing how subordination is multifaceted and, as such, how legal decisions based on the antisubordination principle should be attentive to the diverse ways in which inequalities can permeate the law, in order to be properly addressed by it. By using the case in which the Brazilian Supreme Court criminalized LGBTQphobia as a focal point, I argue that equality considerations must guide how concepts are framed, how problems are defined, which solutions are proposed, as well as reflections about what a decision comes to mean for a determined place’s jurisprudence and political context. In my exercise, I also highlight complications that might arise when the antisubordination principle is legally mobilized. Subordination is not static and power relations are dynamic. As such, intersectionalities (in the case at hand, involving mostly gender identity, sexuality, race and class) might pose challenges for the identification of problems that should be addressed and for the choice of adequate emancipatory decisions, particularly when subordinate groups’ interests conflict. In the same vein, subordination happens through multiple overlapping practices, such as violence, deprivation, and exclusion, and addressing one does not always lead to a unitary all-encompassing antisubordinatory direction. I try to offer a provisional solution for these complications, based on the inclusion of civil society participation considerations on legal interpretation, through what I call the “Joint Venture Theory of Legal Interpretation”. The envisioned interpretation would be animated by the “demosprudential” assumption that legal meanings are created by courts, but also by people on the ground and asserts that, as such, the process of legal reasoning should give weight to the latter. The paper is part of a broader project of fully theorizing antisubordination, which includes the articulation of the antisubordination principle, concretizing its application, trying to solve its shortcomings, and establishing the political and constitutional theories that constitute its normative underpinning.

Keywords: Antisubordination, Equality, Legal Interpretation, Demosprudence, Brazil.

About the author:

Taís Penteado is a Ph.D. candidate at FGV Law School of São Paulo, Brazil. She holds an M.A. and a J.D. from the same institution, as well as an LL.M. from Yale Law School, where she is currently a Visiting Researcher. Her work explores the ways in which Constitutional Law, Fundamental Rights, and Equality Law interact with power relations, with a particular interest in understanding how subordination permeates fundamental legal categories and how law can become a better tool for emancipation. This paper was developed during her LL.M. year and constitutes one of the backbones of her Ph.D. thesis, which aims to provide a re-theorization of the antisubordination principle.

A discriminatory education policy that further excludes the oppressed from academia: the case of the National Overseas Scholarship (NOS) for SC-ST scholars in India

by Ashok Danavath

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Abstract

The National Overseas Scholarship (NOS) for Scheduled Caste and Tribes (SC-ST) scholars was constituted decades ago as an educational policy by the Government of India (GoI) (Thorat, 2009). With the objective of facilitating upward mobility by guaranteeing financial assistance to low-income students from Dalit and Adivasi communities, this policy has supported SC and ST students to pursue Master’s, Ph.D., and postdoctoral studies in Quacquarelli Symonds (QS) top-ranked universities of the world.

However, since its inception, the implementation procedures have always been a point of controversy (Danavath, 2022). Though the objective ostensibly is for social welfare, the NoS’s implementation has placed Dalit-Adivasi scholars at the mercy of the casteist state. Every NoS awardee has to deal with the unresponsive, if not insensitive, politico and executive bureaucracy. Moreover, the fixed amount of the scholarship grant is not adaptive to increasing inflation rates, nor to varying cost of living depending on the location of the university. These inconsiderations only add to the suffering of marginalized students in foreign countries. Despite its inadequacies, the policy has allowed few Dalit and Adivasi scholars from social science streams to reach global universities and conduct research on the socio-politico-cultural life of Indian society and state. Their research has fostered some of the first discussions on caste-based systemic violence on a global front. Yet even this iota of change towards establishing an anti-caste dialogue has become an object of scorn for the dominant caste elite of India. As such, a dialogue questioned the illegitimate dominance of the upper caste in a manifold. The current ruling political party in India, the Bhartiya Janata Party (BJP) is a right-wing Hindutva government backed by dominant caste policymakers. Their election into power, beginning in 2014, systematically cracked down on the NOS policy, first by increasing the required grades (percent of marks) for eligibility of the scholarship in 2020 and delivering a death blow through major structural changes in 2022. These changes inter alia discontinued the intersectional research areas on Indian culture, heritage, and history under the NOS scholarship policy. Therefore, this policy, by implication, excludes students belonging to caste-marginalized communities from critically engaging with caste-based oppression. The regressive effects of the policy are far-reaching. Especially, its outcome has a discriminatory effect on female liberal arts scholars as a disproportionate percentage of female applicants have shifted towards STEM education (The Wire 2022). This retrogressive move by the government to censor Dalit-Adivasi voices and to shrink global critical academic space has been lamented by various international bodies, academic and civil society organizations both globally and domestically, However, this has not moved the current fascist government to reverse the changes made to the Scholarship policy.

In light of the policy changes made to the NOS impeding academic discussion on caste, and any academic engagement with its intersections, as a scholar hailing from the caste-oppressed Scheduled Tribal background, in this paper I am exploring the question – Are Dalits-Adivasi scholars doing research on caste a problem for the casteist state?

About the author

Ashok Danavath is a first-generation Schedule Tribe (Indigenous) researcher from Telangana, India, specializing in the study of experiences among marginalized communities, with a primary focuses on Dalit and Adivasi populations in South Asia. He holds an M.A. in Development Studies from the International Institute of Social Studies in the Netherlands. Ashok actively challenges prevailing narratives and champions inclusive methodologies in his research. His diverse research interests encompass educational policies for caste-oppressed students, welfare policy, rural and agrarian changes, social inequalities, post-colonial education, and epistemic violence. In addition to his research pursuits, Ashok regularly contributes op-eds in both English and Telugu. Currently, he serves as a Senior Researcher with the National Campaign on Dalit Human Rights.

Plain Reading the Constitution: Frederick Douglass, Textualism, and the Pursuit of Racial Justice 

by Emma Brush

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Winner, Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice (2022)

Abstract:

In the legal imagination, Frederick Douglass is often viewed as a “constitutional utopian” for his efforts to salvage the prewar Constitution with an antislavery construction. Rejecting the views of both the Taney Court and the followers of William Lloyd Garrison, who saw the Constitution as “a covenant with death, and an agreement with hell,” Douglass and other political abolitionists put forward a redemptive view of the Constitution rooted in both the letter and the spirit of the document. For Douglass, the fierce contest over constitutional meaning suggested the amenability of the Constitution’s “plain meaning” to abolition and the importance of wresting political power, and thus interpretive power, from pro–slavery forces. The long–term potency of Douglass’s adaptive, literalist, and purposive method suggests the importance of his constitutional interpretation for formulating a racial justice jurisprudence today.

The textualism practiced by the current Supreme Court, however, poses multiple challenges to the pursuit of that same goal. The questions that occupied Douglass’s day—whether and how to embrace a document tied to foundational injustice—have come to swirl not only around Douglass’s legacy but also around contemporary questions of constitutional theory, particularly pertaining to the relation of the text and textual interpretation to racial justice. In this paper, I will argue that Douglass’s textualism offers progressive constitutionalists a theory of interpretation that meets originalism on many of its own terms but also insists on a radically revised conception
of constitutional meaning, one that centers racial justice first and foremost.

About the author:

Emma Brush is a JD/PhD student who studies the intersection of American law and literature across the long nineteenth century. Her dissertation explores the constitutional arguments of abolitionist writers and activists and traces their impact on law and political discourse from the nineteenth century to today. Before beginning her graduate study at Stanford University, she served as the managing editor of the Breakthrough Journal, the publication of an environmental think tank out of Oakland, California.

The Unhappy Marriage of ‘Queerness’ and ‘Culture’: The Present Implications of Fixating on the Past

by Arti Gupta

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View the edited version, now published in Vol. 48(2) of the Australian Feminist Law Journal.

Winner, Audre Rapoport Prize for Scholarship on Gender and Human Rights (2022)

Abstract:

In September 2018, the Supreme Court of India in Navtej Johar v. Union of India, decriminalised consensual same-sex sexual activities by reading down Section 377 of the Indian Penal Code. A significant aspect of the Court’s reasoning was that Section 377 was an embodiment of ‘Judeo-Christian’ morality and a colonial imposition. In providing that reasoning, the judgment does not stand alone. For a long time, various revisionist accounts of religious texts and scriptures have been presented to argue that ancient ‘Indian culture’ had been tolerant towards non-normative sex and gender, and ‘homophobia’ was simply a British imposition. Such revisionist arguments had initially been put forth by Indian queer rights groups to nullify the orthodox homophobic attitudes, which rested on the claim that homosexuality is alien to ‘our culture’. However, this article argues that there has been an increasing cooptation of such accounts by dominant Hindu Right groups for their political ends. This article also shows that such reliance on the past (through scriptures or otherwise) to confer legitimacy on the present can have the effect of constraining the radical potentialities of that past. At the end, this article argues for a turn towards the future, which, creating new solidarities, can become a horizon of possibilities.

About the author:

Arti Gupta graduated from the National Law School of India University, Bangalore in 2022, with a degree in B.A. LL.B. (Hons.). At law school, she explored her research interests in queer theory, postcolonial theory, female sexual abuse, and critique of the human rights discourse. This paper was written over a duration of 18 months as three essays for three separate courses. This paper is a combined, expanded and edited version of all three essays. Currently, Arti is practicing as an Advocate at the Supreme Court of India.

A Clean Slate for No One: The Need for Automatic Expungement Policies

by Michael Hiestand 

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Abstract

In the United States, the “collateral consequences” of a criminal record extend far beyond the period of physical detention. These disadvantages fall disproportionately on the shoulders of people of color, and on Black Americans in particular. Among the numerous policy mechanisms aimed at alleviating these collateral consequences, expungement – the extraction and isolation of official criminal records from public access – stands out as particularly promising in that it promises to provide criminalized individuals a “clean slate.” However, the emerging literature on the uptake rate of expungement policies in their current, petition-based state has been far from encouraging. This paper provides a critical race perspective to this emerging literature through a comparative analysis of expungement policies in New Jersey and Alabama. This analysis reveals that existing expungement policies are not simply ineffective; they are also active contributors to the racial disparities in the impacts mass incarceration. This paper concludes by suggesting that the only equitable path forward for expungement is to follow the lead of New Jersey and other states by providing expungement automatically to those who qualify.

About the Author

Michael Hiestand is a second-year J.D. candidate at the University of Texas School of Law whose main academic interests are American racial politics and linguistics. Originally from Kentucky, he received his undergraduate education at the University of Chicago before moving to Texas. He will spend this summer working in the Houston office of Simpson Thacher & Bartlett before returning to Austin for his final year.

Precarity Capitalism and the Global Value Chain in Beef: The Plight of Meatpacking Workers at JBS Greeley

by John Fossum

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Abstract

Of the many jobs categorized as “essential” during the first wave of the COVID-19 pandemic, the continued operation of American meatpacking plants stood out. This work was 1) unrelated to critical healthcare services, 2) primarily staffed by minority and immigrant workers, and 3) conducted in conditions that seemed ideal for the coronavirus’ spread. Why and how did meatpacking facilities then remain open through the spring and summer of 2020, despite the proliferation of facility-linked COVID-19 hotspots and worker deaths? Drawing from authors of legal theory on racial capitalism, self-regulatory behavior by transnational corporations, and “precarity capitalism,” this paper builds context for this phenomenon through a case study on JBS USA Beef in Greeley, Colorado, the flagship facility for the American branch of world-leading meat producer JBS S.A. based in Brazil. It frames the protracted battle over production and worker safety as a standoff between workers of minority racial status, in precarious economic and labor conditions, and a winning coalition of powerful political and corporate stakeholders invested in the global value chain in beef.

About the Author

John Fossum graduated from the LBJ School of Public Affairs with a Master in Public Affairs in 2021. In the summer of 2020, he completed a graduate fellowship with Rapoport Center for Human Rights and Justice at the UT Austin School of Law, co-publishing a study of COVID-related labor policy affecting meatpacking workers in the United States. Prior to his graduate studies, John served for two years as a Peace Corps Volunteer in Benin, West Africa. He has continued on to program roles with the Carter Center in Chad, Central Africa, and with the Famine Early Warning Systems Network.

Between Intra-Group Vulnerability and Inter-Group Vulnerability: Bridging the Gaps in the Theoretical Scholarship on Internal Minorities

by Miriam Zucker

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Winner, Audre Rapoport Prize for Scholarship on Gender and Human Rights (2021)

Abstract:

The scholarship on internal minorities has generated different proposals for addressing concerns about the oppressive impacts of minority cultures’ practices on their more vulnerable members. Critical reflection on this scholarship reveals that it is characterized by a rigid binary choice between an interventionist approach—seeking to eradicate cultural practices that contradict liberal values and norms—and a laissez-faire approach that rejects interference in cultural minority communities’ affairs and instead relies on the right of minority members to exit their community. Despite these two approaches dominating the scholarship, both options under this binary are detached from the interests and needs of minority women. Rarely do women and girls benefit from putting their family members in jail under the interventionist approach, while leaving the community under the laissez-faire approach is either impossible or undesired (or both) because it often requires the individual to “leave her whole world behind.” This paper demonstrates that this binary stems from the fact that scholars have not accounted for the role of the state in the problem of intra-group vulnerability, and illuminates how when one does, one notices other options that better align with women and girls’ interests and needs.

About the Author 

Dr. Miriam Zucker is an Adjunct Professor and a visiting research fellow at Osgoode Hall Law School, York University. She is currently researching at the Nathanson Centre on Transnational Human Rights, Crime and Security, and has been a visiting fellow at the Institute for Feminist Legal Studies at Osgoode Hall Law School since February 2021. Miriam received her SJD degree from the University of Toronto Faculty of Law (June 2021).  Her research concerns the areas of Multiculturalism and Feminism, Law and Religion, and Human Rights Law, and her doctoral work focuses on the problem of minority women’s intra-group vulnerability, often described as the treatment of “minorities within minorities.”

An Ethos of Restitution: Walter Schwarz and the Gloss

by Laura Petersen

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Winner, Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice (2021)

Click here to watch a recording of Petersen’s presentation. 

Abstract:

Berlin, 1950s. Newly arrived back in Germany after escaping from the NS regime, a Jewish lawyer called Dr Walter Schwarz settles in Berlin. He opens a law practice assisting clients who are making private restitution claims. But Schwarz is not only a lawyer; he is a passionate writer: a jurist. This paper focuses on his writings in the professional journal of restitution, which are in the form of “glosses.” Generally appearing in the margins alongside neutrally worded case notes, these glosses are short, rhetorical commentaries, which often take literary forms. Schwarz uses the gloss, literally situated in the margins of law, as a genre which can return a human dimension to what became a rigid and bureaucratic process. Through his performative language and attention towards the conduct of legal practice, I argue Schwarz’s glosses offer a different ethos of restitution in the aftermath.

About the author:

Laura Petersen is a PhD Candidate at the Institute for International Law and the Humanities at the Melbourne Law School (Australia). Her research interests are cross-disciplinary, integrating approaches to jurisprudence with literature and visual art. “An Ethos of Restitution” reflects research undertaken in Berlin for her PhD thesis, which focuses on legal, literary, and artistic practices of restitution in post-Holocaust Germany. She earned a Masters at the Freie Universität Berlin and her MA thesis (in German) considered the role of metafictional narratives in Holocaust memory. Laura is a qualified lawyer in Australia and currently vice-president of the Law, Literature and Humanities Association of Australasia.