Gerald L. Neuman

J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law

Biography

Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, and the Co-Director of the Human Rights Program at HLS. He teaches human rights, constitutional law, and immigration and nationality law. His current research focuses on international human rights bodies, transnational dimensions of constitutionalism, and rights of foreign nationals. He is the author of Strangers to the Constitution: Immigrants, Borders and Fundamental Law (Princeton 1996), and co-author of the casebook Human Rights (with Louis Henkin et al., Foundation Press). Prior to joining HLS in 2006, he served on the faculties of the University of Pennsylvania Law School (1984-1992) and Columbia Law School (1992-2006). From 2011 to 2014, he was a member of the Human Rights Committee, the treaty body that monitors compliance with the International Covenant on Civil and Political Rights.

Areas of Interest

Gerald L. Neuman, Bi-Level Remedies for Human Rights Violations, 55 Harv. Int'l L.J. 323 (2014).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Article
Gerald L. Neuman, Subsidiarity, in, The Oxford Handbook of International Human Rights Law (Dinah Shelton ed., 2013).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
This article examines the role of the principle of subsidiarity in international human rights law. It explains the concept and the procedural doctrines of subsidiarity and considers subsidiarity of international institutions as a structural fact and the substantive subsidiarity within the state. It contends that international protection of human rights is subsidiary to national protection and that subsidiarity plays important roles in international human rights law. This article also predicts the future expansion and evolution of the role of subsidiarity in international human rights law.
Gerald L. Neuman, The Extraterritorial Constitution after Boumediene v. Bush, 82 S. Cal. L. Rev. 259 (2009).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Supreme Court of the United States
,
Human Rights Law
Type: Article
Abstract
The U.S. Supreme Court's recent decision in Boumediene v. Bush elaborates a 'functional approach" to the selective application of constitutional limitations to U.S. government action outside U.S. sovereign territory. This functional approach provides the best fit, both descriptively and normatively, to the Court's modern case law. The decision repudiates the stance of the plurality in United States v. Verdugo-Urquidez, which sought to deny all constitutional rights to foreign nationals involuntarily subjected to U.S. action abroad. Important ambiguities remain in the articulation of the functional approach. One major question is whether and when foreign nationals who are not in U.S. custody (unlike the Boumediene petitioners) are also potentially eligible for constitutional protection. Another concerns how coarsely or finely the categories of foreign locations are drawn when the functional analysis is applied. The confirmation of the functional approach has significant consequences for U.S. citizens who travel abroad and for foreign nationals who travel here, as well as for foreign nationals who remain abroad. Although the Supreme Court did not rely on international law in its Boumediene decision, international human rights law may prove helpful in the future in determining whether limitations such as the First Amendment or the Takings Clause can practicably be given effect in foreign countries.
Gerald L. Neuman, Arbitrary Detention and the Human Rights Committee's General Comment 35, in Mélanges in tribute to Judge Christine Chanet, (Emmanuel Decaux, Iulia Motoc & Patrice Gillibert eds., forthcoming).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The UN Human Rights Committee’s General Comment No. 35 summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay provides an overview of General Comment No. 35, and then focuses on three aspects that provoked controversy either within the Committee or outside it: the time limit for “prompt” presentation of pre-trial detainees to a judge; the standards governing security detention in non-international armed conflict; and the disagreement between the Human Rights Committee and the Committee on the Rights of Persons with Disabilities regarding whether involuntary hospitalization is ever permitted. These examples illustrate significant issues about the interaction between the Covenant and other international regimes.
Gerald L. Neuman, Constrained Derogation in Positive Human Rights Regimes, in Human Rights in Emergencies (E.J. Criddle ed., ASIL Studies in Int’l Legal Theory 2016).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Gerald L. Neuman, Citizenship, in The Oxford Handbook of the United States Constitution 587 (Mark Graber, Sanford Levinson, & Mark Tushnet eds., 2015).
Categories:
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Immigration Law
Type: Book
Abstract
This chapter examines the U.S. constitutional law of citizenship, particularly as a status recognized by the Constitution entailing rights and duties. It first traces the evolution of the institution of citizenship in the Constitution and how federalism has contributed to the maintenance of multiple citizenship statuses rather than a uniform common citizenship. It discusses the constitutionally salient rights of citizenship, and citizenship itself as a right, before turning to civic duties implied by the Constitution. Against that background, it focuses on women’s citizenship, and the slow dismantling of gender differentiation in civic rights and duties. It also explores the extraterritoriality of citizens’ constitutional rights and concludes by examining the weak constraints that constitutional rights place on naturalization and immigration policies.
Gerald L. Neuman, Extraterritoriality and the Interest of the United States in Regulating Its Own, 99 Cornell L. Rev. 1441 (2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Fourth Amendment
,
International Law
Type: Article
Abstract
This Essay explores a few of the many legal dimensions of the federal government’s regulation of harmful conduct of its own officials and its own nationals outside the borders of the United States. First, Part I discusses statutory regulation of the action of federal officials, as an essential aspect of defining their roles abroad. Second, Part II addresses the currently disputed power of Congress, under the Foreign Commerce Clause, to protect foreign citizens against harm—including sexual abuse—inflicted by U.S. nationals in foreign territory. Finally, Part III examines recent developments concerning constitutional restrictions on extraterritorial federal action, including the denial that the Warrant Clause applies to U.S. citizens, and the surprisingly limited effect of the Supreme Court’s 2008 decision in Boumediene v. Bush10 on other constitutional rights of foreign nationals. The common theme that will emerge from these related inquiries is that legal interpretation must remain open to appropriate recognition of extraterritorial harm.
Gerald L. Neuman, The Brakes that Failed: Constitutional Restriction of International Agreements in France, 45 Cornell Int'l. L. J. 257 (2012).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Law
,
International Law
,
Treaties & International Agreements
Type: Article
Abstract
Can constitutions successfully constrain the exercise of the treaty power? This article examines the French Constitution of 1958 as a case study. The founders of the Fifth Republic drafted provisions intended to protect national sovereignty, as the Gaullists understood that concept, against inroads resulting from international agreements. Looking back fifty years later, it is clear that those protective efforts did not succeed. The sequence of events by which the constraints were loosened or evaded may represent one nation's particular history, but they illustrate the limited capacity of constitutional restrictions to control international commitments in the long term.
Gerald L. Neuman, Book Review, 105 Am. J. Int'l L. 643 (2011) (reviewing Thomas Buergenthal & Daniel Thürer, Menschenrechte: Ideale, Instrumente, Institutionen (2010)).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Article
Gerald L. Neuman, The Habeas Corpus Suspension Clause after Boumediene v. Bush, 110 Colum. L. Rev. 537 (2010).
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
Criminal Prosecution
Type: Article
Abstract
In the course of vindicating the right to habeas corpus for military prisoners at Guantanamo Bay Naval Base, the Supreme Court had occasion to resolve a series of previously open questions about the meaning of the Constitution's Habeas Corpus Suspension Clause. In this Essay, Professor Neuman examines the implications of the Court's interpretation for habeas corpus law more generally, in civil and criminal contexts within the United States. The Suspension Clause guarantees a permanent minimum content for the judicial remedy against unlawful detention of either citizens or aliens. The constitutionally necessary scope of review is determined partly by historical inquiry, and partly by an instrumental balancing test. Stricter standards apply to review of executive detention, but the Clause may also require some check on judicially ordered detention. The Court's analysis further suggests that the Suspension Clause is best understood today as affirmatively mandating a federal remedy, and not merely as protecting state remedies from federal interference. This Essay explores the consequences of this account for recent controversies over judicial power to provide effective review of decisions removing aliens from the United States, and thereby illustrates the uncertain operation of the Court's new balancing approach.
Louis Henkin, Sarah Cleveland, Laurence Helfer, Gerald L. Neuman & Diane F. Orntilicher, Human Rights (Found. Press 2009).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Human Rights Law
Type: Book
Abstract
"This casebook provides a comprehensive, accessible, and up-to-date analysis of international human rights law. It emphasizes the relationship between the international, regional, and national legal systems (with a particular focus on the United States), features an intellectual and historical development of the idea of human rights, and analyzes recent developments in areas including corporate responsibility, terrorism and human rights, the rights of refugees, international criminal law, and the role of NGOs.The first edition has been comprehensively revised and updated to address important and “hot button” issues and topics in international human rights law. These include:an introductory case study on human rights, extraordinary renditions and extraterritoriality."
Gerald L. Neuman, Import, Export, and Regional Consent in the Inter-American Court of Human Rights, 19 Eur. J. Int'l. L. 101 (2008).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Human Rights Law
Type: Article
Abstract
The Inter-American Court of Human Rights has elaborated a significant body of human rights jurisprudence through interpretation of regional human rights conventions and the adaptation of European and global precedents and global soft law. The Inter-American Court has also aspired to influence outside its region by offering innovative interpretations of human rights and by identifying norms as jus cogens. The Court’s methodology in recent years has appeared to give insufficient consideration to the consent of the regional community of states as a factor in the evolutive interpretation of a human rights treaty. The article illustrates and criticizes that trend, and contends that greater attention to indicia of regional consent could improve the acceptance and effectiveness of the Inter-American human rights system.
Gerald L. Neuman, International Law as a Resource in Constitutional Interpretation, 30 Harv. J.L. & Pub. Pol'y 177 (2006).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
International Law
Type: Article
Gerald L. Neuman, Talking to Ourselves, 16 Eur. J. Int'l L. 139 (2005).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Human Rights Law
Type: Article
Abstract
The discourse of international law is a remarkable achievement, but it poses the danger that international lawyers will be absorbed in their own conversation and fail to persuade outsiders. International human rights bodies may be especially vulnerable to that risk, despite their need for cooperation from local actors.
Gerald L. Neuman, Comment, Counter-terrorist Operations and the Rule of Law, 15 Eur. J. Int'l. L. 1019 (2004).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
Human Rights Law
,
International Law
Type: Article
Abstract
Measures to prevent and punish terrorism must be conducted with respect for human rights. Nonetheless, when counter-terrorism methods shift from law enforcement to transnational armed conflict, the applicability and effect of particular positive human rights norms may change. If European states find it necessary to pursue the military model of counter-terrorism, then European human rights jurisprudence may need to modify its rigid opposition to military trials. The right to take proceedings before a court for determination of the lawfulness of detention provides an important procedural safeguard against torture and disappearance, but in some narrow circumstances derogation from that right may be strictly required by the exigencies of combating terrorism.
Gerald L. Neuman, Humanitarian Law and Counterterrorist Force, 14 Eur. J. Int'l. L. 283 (2003).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
International Humanitarian Law
Type: Article
Abstract
The current context of a ‘war against terrorism’ raises the question whether international humanitarian law should govern a state’s actions in an armed conflict against a foreign terrorist organization. Depending on the configuration of the conflict, including the response of the foreign state from whose territory the terrorists operate, existing treaties may already apply to the military operations. The limited protections they impose, though not originally designed with such a conflict in mind, do not unduly hinder defence against international terrorism. Restricting counterterrorist operations is justified, in part by bedrock human rights of the terrorists themselves, but more strongly by the rights of innocent civilians exposed to counterterrorist violence.
Gerald L. Neuman, On Fascist Honour and Human Dignity: A Sceptical Response, in Darker Legacies of Law in Europe 267 (Christian Joerges & Navraj Ghaleigh eds., Hart Pub. 2003).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Legal Theory & Philosophy
,
Foreign Law
,
European Law
,
Legal History
,
Legal & Political Theory
Type: Book
Abstract
The legal scholarship of the National Socialist and Fascist period of the 20th century and its subsequent reverberation throughout European law and legal tradition has recently become the focus of intense scholarly discussion. This volume presents theoretical, historical and legal inquiries into the legacy of National Socialism and Fascism written by a group of the leading scholars in this field. Their essays are wide-ranging, covering: the reception of National Socialist and Fascist ideologies into legal scholarship; contemporary perceptions of Nazi Law in the Anglo-American world; parallels and differences among authoritarian regimes in the Third Reich, Austria, Italy, Spain, and Vichy-France; how formerly authoritarian countries have dealt with their legal antecedents; continuities and discontinuities in legal thought in private law, public law, labor law, international and European law; and the legal profession's endogenous obedience and the pains of Vergangenheitsbewältigung. The majority of the contributions were first presented at a conference at the EUI in the fall of 2000, the others in subsequent series of seminars.
Gerald L. Neuman, The U.S. Constitutional Conception of the Rule of Law and the Rechtsstaatsprinzip of the Grundgesetz, in Das Grundgesetz im Prozess europäischer und globaler Verfassungsentwicklung : internationales Symposium zum 50-jährigen Bestehen des Grundgesetzes am 14. und 15. Mai 1999 gemeinsam veranstaltet mit der Fritz Thyssen Stiftung 253 (Ulrich Battis et al. eds., Nomos, 2000).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
This paper compares the conception of the rule of law in U.S. constitutional law with the corresponding conception of the Rechtsstaat in modern German constitutional law. The type of Rechtsstaat established by the German constitution is clearly substantive. A commitment to human rights is understood as inherent in the concept of the Rechtsstaat, and so is the requirement of proportionality as a standard for evaluating restrictions on personal and economic liberties. In U.S. constitutional law, by contrast, the concept of the rule of law does not operate as an enforceable constitutional doctrine, but rather as an ideal lying behind and informing both constitutional and nonconstitutional doctrines. Characterizing the vision of the rule of law expressed in U.S. constitutional law is, therefore, more difficult, but I argue that it is primarily procedural (or formal), with some substantive elements. The concept of proportionality does not lack parallels in U.S. constitutional law; basically, it is a form of balancing of interests. But balancing is not regarded in U.S. constitutional doctrine as an element of the rule of law, and it is not applied to interferences with all constitutional rights. This is especially true with regard to economic rights that are more highly protected in German constitutional law. The German constitution has been very influential as a model of constitutionalism, and one of its most exportable features may be its image of the Rechtsstaat. It remains to be seen to what degree the more substantive conception of the Rechtsstaat will carry protection of economic rights under the proportionality principle more widely into national constitutions and transnational arrangements, and to what degree those institutions will content themselves with the thinner Anglo-American conception of the rule of law.
Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton Univ. Press 1996).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Civil Rights
,
Immigration Law
,
Refugee & Asylum Law
Type: Book
Abstract
"Gerald Neuman discusses in historical and contemporary terms the repeated efforts of U.S. insiders to claim the Constitution as their exclusive property and to deny constitutional rights to aliens and immigrants--and even citizens if they are outside the nation's borders. Tracing such efforts from the debates over the Alien and Sedition Acts in 1798 to present-day controversies about illegal aliens and their children, the author argues that no human being subject to the governance of the United States should be a "stranger to the Constitution." Thus, whenever the government asserts its power to impose obligations on individuals, it brings them within the constitutional system and should afford them constitutional rights. In Neuman's view, this mutuality of obligation is the most persuasive approach to extending constitutional rights extraterritorially to all U.S. citizens and to those aliens on whom the United States seeks to impose legal responsibilities. Examining both mutuality and more flexible theories, Neuman defends some constitutional constraints on immigration and deportation policies and argues that the political rights of aliens need not exclude suffrage. Finally, in regard to whether children born in the United States to illegally present alien parents should be U.S. citizens, he concludes that the Constitution's traditional shield against the emergence of a hereditary caste of "illegals" should be vigilantly preserved."

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