Laws, Volume 2, Issue 3 (September 2013) – 10 articles , Pages 150-375

This paper engages the unspoken fourth dimension of intersectionality—time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then raises a number of points regarding the temporal locality of identity—the influence of time on issues of identity and understanding, its implications for legal interventions, social movement building, and paradigms of progressive change. As the title suggests, the paper asks us to consider the frame of identity over time. Full article

Women commit significantly fewer murders than men and are perceived to be less violent. This belief about women’s non-violence reflects the discourses surrounding gender, all of which assume that women possess certain inherent essential characteristics such as passivity and gentleness. When women commit murder the fundamental social structures based on appropriate feminine gendered behaviour are contradicted and subsequently challenged. This article will explore the gendered constructions of women who kill within the criminal justice system. These women are labelled as either mad, bad or a victim, by both the criminal justice system and society, depending on the construction of their crime, their gender and their sexuality. Symbiotic to labelling women who kill in this way is the denial of their agency. That is to say that labelling these women denies the recognition of their ability to make a semi-autonomous decision to act in a particular way. It is submitted that denying the agency of these women raises a number of issues, including, but not limited to, maintaining the current gendered status quo within the criminal law and criminal justice system, and justice both being done, and being seen to be done, for these women and their victims. Full article

Few European lawmakers have analyzed the implications of Muslim headscarf bans for equal employment opportunity. EU anti-discrimination directives suggest that contradictory member-state approaches will eventually invoke a judicial Community response at national expense. Drawing on the bona fide occupational qualification (BFOQ) standard, this study compares the “judicial cultures” of the U.S. Supreme Court, the German Constitutional Court, the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ). It argues that while the ECJ initially invoked Roman law precepts shared by a majority of its member-states through the 1980s, it has come to embrace Anglo-American norms stressing individual freedoms over state interests. Given their strong support for equal treatment and social inclusion, EU justices will be more likely than member-state or ECHR judges to overturn existing bans on hejab at the workplace, once such a case makes its way onto the ECJ docket. Full article

The international protection regime of refugee, stateless and displaced women and girls has significant deficiencies. As refugees and displaced persons, women and girls experience unique challenges. They suffer abuse disproportionately as women through rape, human trafficking, and female genital mutilation. Women and girl refugees face greater challenges and risks to safety at every stage of displacement: in refugee camps, in urban spaces, in transit to safe haven, and in the process of obtaining legal status. They are frequently at the mercy of male family members in making claims to refugee and asylum status, as females are often unable to obtain necessary documentation and navigate barriers to the asylum process that uniquely disfavor women’s claims. This paper argues that the UN must expand the scope of the Millennium Development Goals to specifically include state responsibility towards refugees and displaced persons in their territories, without regard to their legal status. Until the international regime designed to protect refugees and displaced persons closes the gaps in addressing female refugees and displaced persons’ unique vulnerabilities, the UN’s Millennium Development Goals should be reoriented to include state responsibility to meet these deficiencies. Full article

A dramatic rise in arrest rates for girls over the past decade has led to an increasing interest in understanding gender differences in the risk factors that are associated with delinquency. Moreover, the call has been made for the implementation of gender-specific or gender-responsive interventions in order to effectively divert girls from an antisocial course. However, questions have been raised about three key assumptions underlying the gender-responsive approach to girls involved in the juvenile justice system: is there unequivocal evidence for gender-specificity in the risk factors that contribute to girls’ delinquency; is there clear evidence that existing non-gender-responsive evidence-based interventions for delinquency are less effective for girls than boys; and is there well-grounded evidence that interventions specifically tailored for girls are differentially effective? This article reviews the available research regarding each of these questions and proposes an agenda for future research into the development of effective interventions for juvenile justice-involved girls. Full article

This paper will examine the US government’s proposed changes to the H-1B visa, a dual-intent visa meant to bring highly-skilled individuals to the US labor market. It will first explain what the H-1B visa is and is not and what might happen to the H-1B visa in the future. The focus of the paper, however, will be on how the H-1B visa program is failing. The thesis of this article is that reform to the H-1B visa may be very good for the US employer and the US economy. However, the proposed legislation keeps a number of disadvantageous features for H-1B holders intact, rather than addressing them. Full article

Although classical theorists tend to believe that immigrant youth are more delinquent than native-born adolescents, the existing empirical studies have shown the opposite. The current paper first gives a comprehensive overview of major theoretical explanations for the relatively lower level of delinquency among immigrant youth, including cultural perspectives, strain theories, social control theory, social learning theory, and social disorganization theory. The main argument is that immigrant youth who have not yet acculturated to the youth subculture of the host society are more law-abiding due to protections from their traditional traits (i.e., being more realistic, stronger ties with family/schools, less access to delinquent friends, and higher level of collective efficacy in homogeneous neighborhoods). All these theories are also applied to explain the generational differences in terms of delinquency: compared to earlier generations, later generations of immigrant youth are often more delinquent because they are more acculturated and the protective factors from their origins wear off over time. The continuing public and political bias toward immigrant youth has been explained by social constructionists. We further discuss the necessity of a synthesis of these theoretical approaches and the importance to examine both internal and international migration under similar theoretical frameworks in the modern era. Full article

In part due to its location on the North African coast, in conjunction with its history of being a former French protectorate, Tunisia has become an important country of emigration to the European Union. In particular, maritime arrivals have become a concern for European states, for both humanitarian and security reasons. The experiences of Tunisian irregular migrants arriving to the EU by sea, who are then detained and returned, highlights the multitude of human rights issues that arise across their journey as they interact with the various stakeholders involved—Tunisian and Libyan smugglers, EU and Tunisian authorities and NGOs, amongst others. The situation for these migrants at sea and during rescue and interception operations can most directly involve such issues as the right to life, access to food and water, access to emergency healthcare and access to information. The next stages of detention and return (either immediately or when later identified on EU territory) can most directly involve human rights issues related to the identification and referral mechanisms for groups at risk, access to information and legal remedy, the right of “non-refoulement” and prohibition of torture, inhuman and degrading treatment and punishment. By examining Tunisian migrant experiences along the entirety of their trajectory, one can see the specific human rights issues that arise at each stage for maritime arrivals—from departure to return. The article will examine these human rights concerns in the context of the Tunisian migrant journey, focusing on the four identified stages of the situation at sea, rescue or interception, detention and return. The article will present results from qualitative in-depth interviews conducted for the EU Fundamental Rights Agency in 2011 with 15 Tunisian migrants who had arrived by sea to Italy between 2005 and 2011 and were returned to Tunisia between 2008 and 2011, complemented by interviews with two Tunisian fishermen and an anonymous Tunisian non-governmental stakeholder. Full article

This article considers contemporary border management regimes from a human rights perspective. It demonstrates how a preoccupation with border controls and enforcement has led to serious concerns for the safety and protection of migrants. As border zones have expanded, border crossing has become a more stigmatized and dangerous activity, and even as globalization has given rise to easier and faster international travel, for some, such movement has been outlawed and stigmatized. Measures to strengthen and “secure” borders have paradoxically made migrants, particularly irregular and vulnerable migrants, more at risk of violence and exploitation by non-State and State actors. Migration governance regimes at international borders are thus increasingly located within security and enforcement frameworks that pay little attention to the principles and standards of international human rights law. The paper argues that a human rights-based approach to such regimes is urgently needed, in order to address a growing human rights crisis at international borders. Full article

The Federal Food, Drug, and Cosmetic Act (FFDCA) provides that a food is misbranded if the label accompanying the product is false or misleading in any particular. Congress provided minimal guidance to assist the FDA in making these determinations. When challenged, courts have granted substantial deference to FDA’s various interpretations of what constitute a material fact. However, when confronted with the regulatory question of whether or how to label products derived from genetically engineered (GE) crops, the FDA adopted a narrow reading of the statute that focused on changes in the product itself, rather than the act of genetic engineering. Only those GE products that possessed characteristics significantly different from their conventional counterparts would require labels. This “process versus product” distinction in food labels lies at the heart of the FDA’s resistance to repeated calls for mandatory labeling of foods derived from genetic engineering. Consumer interest in GE food, according to the agency, is not a material fact to trigger mandatory labeling under the statute. In contrast to its approach to GE labels, the agency has long required (since 1966) process-based labels for foods treated with irradiation. As recently as 1986, the FDA affirmed that materiality of information under it misbranding analysis is not limited to product safety or even the abstract worth of the information, but whether consumers view the information as important and whether the omission of a labeling statement would mislead the consumer. Accordingly, mere consumer interest can give rise to a mandatory labeling regime under the FFDCA. In the irradiation context, whole foods and single-ingredient products treated with irradiation must bear a label indicating the process. The irradiation of components in a multi-ingredient food product, however, need not bear a label. This distinction between processed, multi-ingredient and whole or single-ingredient foods provides a potential pathway for the agency to revise its approach to mandatory GE labeling. Exempting highly processed, multi-ingredient foods from a labeling regime would minimize traceability and segregation-generated disruptions in the commodity supply chain, thereby minimizing potential compliance costs, while also empowering consumers to express their preferences for non-GE whole and single-ingredient food products. Full article