Faculty Bibliography
-
Type:
Categories:
Sub-Categories:
"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, Understanding Global Due Process, 23 Geo. Immigr. L.J. 365 (2009).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman & Nicholas Hatzis, Was Bush v. Gore a Human Rights Case?, 25 Const. Comment. 215 (2008).
Type:
Categories:
Sub-Categories:
The article discusses a court case on the Greek parliamentary election of 2004 wherein the Supreme Court of Greece decided on the contested election by ruling for a recalculation based on different rules. The ruling was challenged by under the free elections provision of the European human rights system, with the European Court of Human Rights rendering judgment in April 2008 that Greece has violated this provision. It differentiates the remedy in this with that of the intervention of the U.S. Supreme Court in the 2000 in the 2000 elections.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Discretionary Deportation, 20 Geo. Immigr. L.J. 611 (2006).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Closing the Guantanamo Loophole, 50 Loy. L. Rev. 1 (2004).
Type:
Categories:
Sub-Categories:
The constitutional status of the Guantanamo Bay Naval Base on the island of Cuba has suddenly gone from an issue of esoteric interest to refugee lawyers to a problem attracting intense global attention. The Administration's claims concerning a total absence of legal constraints on its actions at Guantanamo have become a national disgrace. The Supreme Court granted certiorari in November 2003 to review one aspect of the Administration's claims - whether federal courts are utterly powerless to hear any challenges brought by foreign nationals imprisoned at Guantanamo in connection with the "war on terrorism." Whether and how the Court will resolve that question remains uncertain at this writing. Many legal perspectives could be brought to bear on the current situation at Guantanamo, including global and regional human rights law, international humanitarian law, international criminal law, U.S. constitutional law, U.S. administrative law, U.S. military law, U.S. criminal law, and the law of federal jurisdiction. This article will focus primarily on issues of U.S. constitutional law and federal jurisdiction. In particular, it will discuss the constitutional status of Guantanamo as a nonsovereign territory subject to complete U.S. territorial jurisdiction, the extraterritorial application of fundamental due process rights, and the availability of federal habeas corpus to foreign nationals detained at Guantanamo. These three issues figured prominently in the D.C. Circuit panel decision that the Supreme Court agreed to review, and they are likely to inform both the Supreme Court's judgment and the course of future proceedings.
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
Links:
Is international law “irrelevant” to constitutional interpretation in the United States? How could that be? The arguments for categorical ignorance of international law in constitutional adjudication play on exaggerated fears: fear of foreign domination, fear of judicial activism, fear of the unknown. The claim of irrelevance depends on a false dichotomy between excluding international law from judicial consideration and allowing foreign institutions to control constitutional meaning. The more sensible inquiry would ask how international law has informed constitutional interpretation in the past, and how it should be used in the future.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
David Cole has been providing invaluable service to the nation in his tireless advocacy of respect for our fundamental values in the face of terrorist
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, The Habeas Corpus Suspension Clause after INS v. St. Cyr, 33 Colum. Hum. Rts. L. Rev. 555 (2002).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Federal Courts Issues in Immigration Law, 78 Tex. L. Rev. 1661 (2000).
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Terrorism, Selective Deportation, and the First Amendment after Reno v. AADC, 14 Geo. Immigr. L.J. 313 (2000).
Type:
Categories:
Sub-Categories:
In 1995, the Ninth Circuit issued a landmark decision holding that the First Amendment prohibited the federal government from singling aliens out for deportation on the basis of political activities for which the First Amendment would preclude the criminal punishment of citizens. In 1999, in Reno v. American-Arab Anti-Discrimination Committee ("AADC"), the Supreme Court ordered dismissal of the litigation underlying the Ninth Circuit's decision on jurisdictional grounds. In Part III of the majority opinion, Justice Scalia stated that the First Amendment does not guarantee a defense of selective prosecution in deportation proceedings, or at least, that it does not guarantee such a defense in circumstances like those of the case at bar. Whether the Supreme Court's decision is also a landmark depends on a number of factors, including whether Part III of the opinion is merely dictum, and if not, what the scope and rationale of its holding might be. Despite all the layers of technicality and the broader implications, AADC was a highly political case about terrorism and counter-terrorism. From a perspective sympathetic to the plaintiffs, it involved the question of government overreaction trampling on the First Amendment rights of U.S. residents who have engaged in innocent association with a political movement that is based in a foreign country and that happens also to engage in political violence against innocent civilians in pursuit of some of its goals. From the government's perspective, it involved the effort to deny a terrorist organization, ...
-
Type:
Categories:
Sub-Categories:
In 1967 Professor Herbert Wechsler delivered a lecture examining the then-increasing role of the Supreme Court and Congress in defining the rights of the citizens of the states. More than thirty years later, Professor Gerald Neuman revisited this subject in an inaugural lecture as Columbia's first Herbert Wechsler Professor of Federal Jurisprudence. Neuman finds that the Supreme Court has slowed the expansion of constitutional rights and that three recent decisions have circumscribed Congressional power to create statutory rights under the Commerce Clause and the Fourteenth Amendment. He argues that these decisions do not necessarily impede the legitimate use of other governmental powers to confer statutory rights, and that the power of Congress to implement treaties may become a more important basis for the enactment of legislation that protects individual rights beyond those recognized in U.S. constitutional doctrine.
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Equal Protection, 'General Equality,' and Economic Discrimination from a U.S. Perspective, 5 Colum. J. Eur. L. 281 (1999).
Type:
Categories:
Sub-Categories:
The evolution of a country’s constitutional law reflects both the particular historical experiences of the country and general trends of intellectual history shared among countries. The United States inherited its human rights tradition from Europe. Although much of its development has been self-referential, implicit reliance on broader intellectual trends and even explicit invocation of European thinkers and European legal developments have also contributed. Meanwhile, U.S. constitutionalism has been influential in other countries, and received special attention-which does not mean unquestioning imitation-in Germany. In the field of constitutional equality, the U.S. practice of regarding equality before the law as a norm that prohibits arbitrary legislation, and not just as a guarantee of the equal application of laws by judges and administrators, influenced debates on the interpretation of the Weimar Constitution, and has become important constitutional doctrine under the post-war German constitution, or Grundgesetz (GG) of 1949.1 U.S. case law was closely studied in the 1920’s by Professor Gerhard Leibholz, later a Justice of the Federal Constitutional Court, who approved its focus on “objective arbitrariness”–the objective absence of any reasonable justification for unequal treatment. U.S. equality law has evolved considerably since the 1920’s, partly by rejecting some of the cases that influenced German constitutional thinking. That evolution has not yet produced a consistent and stable doctrine, however, and methodological disagreements persist. German equality law (which has not ignored later developments in the United States) has also evolved, and has supplemented the inquiry into objective arbitrariness with other concepts. One might therefore ask whether U.S. and German equality law might reconverge; whether the modem German constitutional experience offers solutions to the dilemmas of U.S. equality law; and whether U.S. experience offers insights into German practice. Or are conditions in the United States and Germany insufficiently comparable for convergence to be likely or desirable? Or, even if conditions are comparable, has the path of constitutional development in each country led their conceptions of equality away from a common basis, so that convergence is not feasible? It is with these questions in mind that I will discuss “general equality” law from the United States perspective, with specific attention to economic discrimination.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Admissions and Denials: A Dialogic Introduction to the Immigration Law Symposium, 29 Conn. L. Rev. 1395 (1997).
Type:
Categories:
Sub-Categories:
United States immigration law is currently in a state of upheaval. Three major statutes enacted in 1996 have produced changes in substance and procedure that affect every aspect of immigration practice. The effects of particular changes, and the interactive consequences of the multiple changes, cannot be fully foreseen, and they will occupy analysts, administrators and courts for years to come. The present Symposium offers a series of assessments of crucial aspects of immigration policy, as it exists and as it is evolving. The three transformative statutes are the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA"), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA"). The first two of these statutes were not primarily about immigration. AEDPA was a conjunction of two distinct legislative projects, with some additional immigration provisions tacked on. Its original purpose dealt with terrorism, both in the criminal context and in the immigration context, but it became the vehicle for the enactment of restrictive new rules on federal post-conviction relief for state prisoners. For immigration law, its significance lay in the creation of new procedures for the removal of alleged alien terrorists through secret proceedings, and in a group of unrelated immigration provisions, including restrictions on discretionary relief for deportable aliens, mandatory detention policy, and unprecedented limits on judicial review.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
"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."
-
Gerald L. Neuman, Subsidiarity, Harmonization, and their Values: Convergence and Divergence in Europe and the United States, 2 Colum. J. Eur. L. 573 (1996).
Type:
Categories:
Sub-Categories:
In surveying insights gained from these two symposia, I will not presume to replicate George Bermann’s fine recapitulation of the first symposium. Rather I will try to make a series of comparative observations on what I have learned, from an American point of view, under the general heading “Subsidiarity, Harmonization, and their Values. Speakers have repeatedly invoked the Supreme Court’s opinion in New York v. United States. Early in that opinion, Justice O’Connor made the following disclaimer: The benefits of this federal structure have been extensively catalogued elsewhere, but they need not concern us here. Our task would be the same even if one couldprove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. Then, in a manner too predictable to be called ironic, O’Connor followed this disclaimer by imposing a brand-new doctrine of federalism – the anti- commandeering principle – which may or may not be normatively attractive, but which lacks persuasive grounding in either text or history. On a prior occasion, Richard Briffault has argued that a disclaimer like O’Connor’s defines the proper judicial role in U.S. federalism. The values served by subsidiarity are diverse and difficult to quantify. In any given case, whether subsidiarity actually promotes those values, and to what degree, and how those benefits compare with the conflicting values served by federal legislation, are matters ill-suited to judicial determination. George Bermann has similarly argued that the European Court of Justice should limit itself to a procedural review of subsidiarity – Rudolf Steinberg disagrees. But we are not judges. Scholars and policymakers both may properly ask what values are served by subsidiarity in the European Union and the United States, in general, and in the particular cases where subsidiarity claims are respected or overridden. As Ingolf Pernice reminds us, federalism is not intended to benefit the states or public officials as an end in itself, but to benefit their people. I would like to take that statement here in the opposite of the sense in which Justice O’Connor meant it. O’Connor meant that state sovereignty should be protected in formal terms, and that we should treat state sovereignty as a mechanism whose protection would ultimately produce benefits for the people. As scholars, we are entitled to look behind the state in each case, and ask who benefits. For the United States, Justice O’Connor has summarized the values served by federalism as follows: It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. Perhaps the principal benefit of the federalist system is a check on abuses of government power. The virtues ascribed to subsidiarity in the European context are similar, though not identical. For example, George Bermann has summarized the values underlying subsidiarity as “self-determination and accountability, political liberty, flexibility, preservation of identities, diversity, and respect for internaldivisions of component states,” plus the possible value – if it counts as a value per se – of deregulation.”
-
Gerald L. Neuman, Recent Trends in United States Migration Control, 38 Ger. Y.B. Int'l L. 284 (1996).
Type:
Categories:
Sub-Categories:
-
Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. Rev. 1425 (1995).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Proceedings of the 1994 Annual National Legal Conference on Immigration and Refugee Policy