Scholarship from the Clinics: On Venue Diversion and Enforced Disappearances

This is part three in a series highlighting clinician scholarship.

Harvard Law School’s clinical faculty and instructors are advancing their advocacy by publishing books and critical scholarship in journals nationwide.

This post highlights recent works published by HLS clinicians. If you have recently published an article, please let us know so that we can share your work!

Rosa Hayes, senior clinical fellow at the Emmett Environmental Law & Policy Clinic, published her article “Venue Diversion” in the 2025 Wisconsin Law Review.

In the article, Hayes explores how, venue—typically considered a procedural detail about where a case is heard—is actually a powerful legal mechanism that courts are increasingly manipulating to exercise unwarranted judicial power. Venue is “destabilizing” its perception as merely a threshold procedural concern, with Hayes uncovering how “Congress has repeatedly recognized and deployed venue’s substantive potential to achieve legislative objectives.”

Her analysis centers on what she terms “venue diversion,” a phenomenon wherein courts develop doctrinal tests that “aggrandize their adjudicatory power at the expense of other courts,” potentially violating statutory text and structure and separation-of-powers principles. Through an original statutory analysis examining both general and specialized venue provisions, Hayes demonstrates that this venue diversion is “inherently and consequentially deregulatory,” creating an “accountability gap” where judicial power can selectively circumvent administrative policies. Critically, she situates this analysis within broader structural legal debates, positioning venue diversion alongside other emerging phenomena like nationwide injunctions that problematize the traditional substance-procedure distinction. Her research suggests that this “venue diversion” is not just a technical legal issue, but a significant challenge to the balance of power between judicial and administrative branches of government.

Susan Farbstein, clinical professor of law and director of the International Human Rights Clinic, co-authored the article “Harmonizing Legal Approaches to Enforced Disappearances: Evidentiary Challenges, Emerging Developments, and the Role of Non-State Actors” in Vol. 37 of the Harvard Human Rights Journal.

The article was co-authored with Jimena Reyes, Director for the Americas at the International Federation for Human Rights, and clinic alumni Sabrina Ochoa J.D. ’24, Rebecca Gore LL.M. ’23, Adriana Bones J.D. ’24, Nikita Khaitan LL.M. ’23, and Victoria Abut J.D. ’24.

The article analyzes a pivotal United Nations Committee on Enforced Disappearances (CED) statement addressing the complex legal challenges of accountability in cases of enforced disappearances, particularly in contexts of extreme violence like Mexico. By examining the CED’s recent guidance, the authors explore how international legal mechanisms are adapting to address systemic evidentiary challenges, including profound information asymmetries between victims and states or non-state actors responsible for disappearances.

The analysis highlights several significant developments, including the CED’s expanded understanding of state acquiescence, its willingness to shift burdens of proof, and its recognition that non-state actors like drug cartels can commit enforced disappearances even without direct state links. However, the article also critically identifies a key limitation: the Statement fails to fully reconcile Articles 2 and 3 of the International Convention, potentially perpetuating a problematic hierarchy that restricts access to protections and remedies for some victims. The article contributes to the ongoing discourse on the evolving legal frameworks surrounding enforced disappearances, while maintaining a core focus on advancing justice for survivors.