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Rights vs. Duties
An article by Samuel Moyn
. In 1947 Julian Huxley, English evolutionary theorist and director-general of UNESCO, wrote Mohandas Gandhi to ask him to contribute an essay to a collection of philosophical reflections on human rights. Gandhi declined. “I learnt from my illiterate but wise mother,” he replied, “that all rights to be deserved and preserved came from duty well done. Thus the very right to live accrues to us only when we do the duty of citizenship of the world.” Huxley should not have been surprised by the rejection. As far back as Hind Swaraj
(1909), his masterpiece in political theory, Gandhi had bemoaned “the farce of everybody wanting and insisting on . . . rights, nobody thinking of . . . duty.” And during World War II, when another Englishman, H. G. Wells, solicited Gandhi’s support for his bill of rights defining war aims, the mahatma recommended that Wells write a cosmopolitan charter of duties instead—a statement of what citizens of the world owe to each other...So we are now very familiar with the claim that all humans everywhere have rights. But we are much less familiar with the notion that rights are protected by the fulfillment of duties.
Writing a Different Story for Trans Rights
An op-ed by Mischa Haider and Bruce Hay.
“Let us write a different story this time,” U.S. Attorney General Loretta Lynch urged at her press conference this month, announcing the Department of Justice’s lawsuit to strike down House Bill 2, the notorious anti-LGBT law enacted by the North Carolina legislature in March. Her remarks have been justly celebrated for their simple, compelling declaration that transgender rights are civil rights, period. As we look back on the past month’s developments, which include the Obama administration’s issuance of national guidelines against anti-transgender discrimination in schools and the president’s own pronouncement that “righteous anger” against such discrimination must be augmented by concrete action, it is worth reflecting on the challenge the attorney general has set for the nation with her memorable words.
New York Law Journal
Justice Denied in the Bronx
An op-ed by Nancy Gertner.
Access to justice means more than fancy courthouses, a courtroom with high ceilings, the American flag unfurled, and even compelling quotes from the U.S. Constitution. Access to justice means more than a presiding judge looking dignified in a long black robe, on an elevated platform, with the lawyers before him or her. Access to justice is not a Kabuki show—the ceremony of justice but not the reality. But to those accused of misdemeanor offenses in the Bronx, a court proceeding is just a hollow ritual. According to the lawsuit filed by The Bronx Defenders, Emery Celli Brinckerhoff & Abady, and Morrison & Foerster, there are few trials, no opportunity to confront witnesses, no way to challenge the government's case, no opportunity to be publicly vindicated in a speedy proceeding, and unconscionable delays.
The Northern Advocate (New Zealand)
Lawyer gains tribal court experience
A Northland man who will be working in a Native American tribal court after he graduates from Harvard Law School believes tribes in the United States have valuable lessons for Maori as they settle with the Crown. Whangarei man Kingi Snelgar
and his partner Kiri Toki
were awarded Fulbright Scholarships to study at Harvard University in Boston to complete their Master of Laws degrees. They headed overseas in August last year and will graduate on May 26. After graduation Mr Snelgar will work as a judge's clerk at the Oglala Sioux Tribal Court in Pine Ridge, South Dakota, and Ms Toki at the Navajo Nation Supreme Court in Arizona.
China poses ‘unique challenges’ for World Trade Organization (WTO) law
On Monday, Harvard’s Mark Wu
published a paper titled “China Inc.,” highlighting how China’s unique economic structure could easily create tensions with other countries that are a part of the international trade regulator.
The Government Just Got More Powerful. (And That’s a Good Thing.)
An op-ed by Cass Sunstein.
Here’s the most important legal principle that you’ve probably never heard of: If a regulation issued by a government agency turns out to be ambiguous, the agency, not the court, gets to resolve the ambiguity. It’s called the Auer principle, after the 1977 Supreme Court decision that established it...For the past five years, the Auer principle has been under sustained assault from the conservative justices, who have argued that it is a violation of the separation of powers and an unacceptable aggrandizement of executive authority. Few people have noticed, but on Monday the court made it clear that Auer is going to be with us for the long time. For the next president -- whether Hillary Clinton or Donald Trump -- there’s a big reason to celebrate. The rest of us should be celebrating along with them.
Shorthanded Supreme Court Ducks the Big Questions
An op-ed by Noah Feldman.
On Monday the Supreme Court issued no fewer than six opinions. The one that will make headlines -- involving the contraceptive mandate of the Affordable Care Act -- wasn’t really a decision at all, but an attempt to make the lower courts do the case over. The other five were business as usual -- and in this strange eight-justice term, that means they were all decided on narrow, technical grounds. The theme was small-ball, if you will: the court is avoiding big issues that it can’t resolve or decide.
Another Judge Trots Out Bad Law to Attack Obamacare
An op-ed by Noah Feldman.
The Affordable Care Act is being subjected to judicial torment. The latest agony is last week’s ruling by a federal judge that the law failed to appropriate funds needed to help cover low- to middle-income people. The case, brought by Republican members of Congress, shouldn’t have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn’t a matter for the courts. It’s also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it. But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party.
The New York Times
Don’t Force Elephants to Perform
A letter by Fellow Delcianna Winders...
Kudos to the students of the Pace Environmental Policy Clinic, Assemblywoman Amy Paulin and State Senator Terrence Murphy for their efforts on behalf of elephants. Although Ringling Bros. and Barnum & Bailey Circus has removed elephants from its traveling performances, numerous other circuses continue to bring shackled elephants into New York State to force them to perform under the constant threat of physical punishment.