Eyal Zamir and Barak Medina
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.001.0001
- Subject:
- Law, Philosophy of Law
Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the ...
More
Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic models. It argues that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages, and that moral constraints can be formalized so as to make their analysis more rigorous. The book discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The book presents the general structure of threshold functions, analyzes their elements, and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including the fight against terrorism, freedom of speech, anti-discrimination law, contract law, and legal paternalism.Less
Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic models. It argues that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages, and that moral constraints can be formalized so as to make their analysis more rigorous. The book discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The book presents the general structure of threshold functions, analyzes their elements, and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including the fight against terrorism, freedom of speech, anti-discrimination law, contract law, and legal paternalism.
Cass R. Sunstein
- Published in print:
- 1995
- Published Online:
- November 2003
- ISBN:
- 9780198289647
- eISBN:
- 9780191596698
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198289642.003.0014
- Subject:
- Economics and Finance, Development, Growth, and Environmental
Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex ...
More
Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex equality. Sunstein proposes what he coins an ‘anticaste principle’ which forbids law from turning a morally irrelevant characteristic such as sex into a systematic source of social disadvantage. Focusing on the situation in which women's sexual and reproductive capacities are turned into objects for the use and control of others, Sunstein critiques American sex discrimination law, makes proposals for national and international legal change, and comments on the limitations of market mechanisms in ending discrimination.Less
Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex equality. Sunstein proposes what he coins an ‘anticaste principle’ which forbids law from turning a morally irrelevant characteristic such as sex into a systematic source of social disadvantage. Focusing on the situation in which women's sexual and reproductive capacities are turned into objects for the use and control of others, Sunstein critiques American sex discrimination law, makes proposals for national and international legal change, and comments on the limitations of market mechanisms in ending discrimination.
EYAL ZAMIR and BARAK MEDINA
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.003.11
- Subject:
- Law, Philosophy of Law
This introductory chapter provides an overview of the book's motivation and goals, and describes the structure of the discussion.
This introductory chapter provides an overview of the book's motivation and goals, and describes the structure of the discussion.
William J. Koch, Kevin S. Douglas, Tonia L. Nicholls, and Melanie L. O'Neill
- Published in print:
- 2005
- Published Online:
- May 2009
- ISBN:
- 9780195188288
- eISBN:
- 9780199870486
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195188288.003.0003
- Subject:
- Psychology, Developmental Psychology
This chapter discusses the primary areas of law in which psychological injury is likely to be material and relevant, and in which mental health professionals are likely to find themselves practicing. ...
More
This chapter discusses the primary areas of law in which psychological injury is likely to be material and relevant, and in which mental health professionals are likely to find themselves practicing. In particular, it covers tort law (both intentional and negligent), workers' compensation law, antidiscrimination law (sexual harassment, employment discrimination, housing discrimination), and laws governing airline accidents. These areas cover the majority of incidents that might give rise to litigation about psychological injuries, such as motor vehicle and other accidents, criminal victimization, harassment, discrimination, workplace injuries, and a host of other circumstances that might give rise to actions in negligence (e.g., medical malpractice, mishandling of dead bodies, consumer liability).Less
This chapter discusses the primary areas of law in which psychological injury is likely to be material and relevant, and in which mental health professionals are likely to find themselves practicing. In particular, it covers tort law (both intentional and negligent), workers' compensation law, antidiscrimination law (sexual harassment, employment discrimination, housing discrimination), and laws governing airline accidents. These areas cover the majority of incidents that might give rise to litigation about psychological injuries, such as motor vehicle and other accidents, criminal victimization, harassment, discrimination, workplace injuries, and a host of other circumstances that might give rise to actions in negligence (e.g., medical malpractice, mishandling of dead bodies, consumer liability).
Kimberly A. Yuracko
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300125856
- eISBN:
- 9780300217858
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300125856.003.0004
- Subject:
- Law, Human Rights and Immigration
This chapter examines the ways in which antisubordination concerns augment those about the need for neutrality in contemporary antidiscrimination jurisprudence. It explains how antisubordination ...
More
This chapter examines the ways in which antisubordination concerns augment those about the need for neutrality in contemporary antidiscrimination jurisprudence. It explains how antisubordination concerns play out in sex discrimination cases and shows that such concerns motivate protections for women from double binds and sexualized workplace demands, but do not seem to motivate or explain new protections for gender nonconformists or transsexuals.Less
This chapter examines the ways in which antisubordination concerns augment those about the need for neutrality in contemporary antidiscrimination jurisprudence. It explains how antisubordination concerns play out in sex discrimination cases and shows that such concerns motivate protections for women from double binds and sexualized workplace demands, but do not seem to motivate or explain new protections for gender nonconformists or transsexuals.
Kimberly A. Yuracko
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300125856
- eISBN:
- 9780300217858
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300125856.003.0005
- Subject:
- Law, Human Rights and Immigration
This chapter explores the focus on status, as opposed to conduct, in American antidiscrimination law. It argues that an expanding conception of gender as status is driving the current protection of ...
More
This chapter explores the focus on status, as opposed to conduct, in American antidiscrimination law. It argues that an expanding conception of gender as status is driving the current protection of gender nonconformists in contemporary sex discrimination jurisprudence. Moreover, the chapter contends that such protection, while important for individuals and groups, poses significant, and as yet largely unrecognized, dangers to women and men generally from increasingly entrenched, encompassing, and stereotypical gender categories.Less
This chapter explores the focus on status, as opposed to conduct, in American antidiscrimination law. It argues that an expanding conception of gender as status is driving the current protection of gender nonconformists in contemporary sex discrimination jurisprudence. Moreover, the chapter contends that such protection, while important for individuals and groups, poses significant, and as yet largely unrecognized, dangers to women and men generally from increasingly entrenched, encompassing, and stereotypical gender categories.
Kimberly A. Yuracko
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300125856
- eISBN:
- 9780300217858
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300125856.003.0006
- Subject:
- Law, Human Rights and Immigration
This chapter explores the extent to which a covert perfectionism, or theory of the good life, may be at work, along with more traditional antidiscrimination values, in contemporary sex discrimination ...
More
This chapter explores the extent to which a covert perfectionism, or theory of the good life, may be at work, along with more traditional antidiscrimination values, in contemporary sex discrimination jurisprudence. The chapter argues that it is difficult to fully understand or make sense of courts’ reactions to sex-based hiring in cases that involve personal privacy or sexual titillation without recognizing an unspoken judicial prioritization of intellectual development and a distrust of commodified sexuality.Less
This chapter explores the extent to which a covert perfectionism, or theory of the good life, may be at work, along with more traditional antidiscrimination values, in contemporary sex discrimination jurisprudence. The chapter argues that it is difficult to fully understand or make sense of courts’ reactions to sex-based hiring in cases that involve personal privacy or sexual titillation without recognizing an unspoken judicial prioritization of intellectual development and a distrust of commodified sexuality.
Kimberly A. Yuracko
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300125856
- eISBN:
- 9780300217858
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300125856.003.0007
- Subject:
- Law, Human Rights and Immigration
This chapter explores the extent to which courts’ expanding protection for gender nonconformists in the workplace reflects, as judicial rhetoric often suggests, a judicial commitment to freedom of ...
More
This chapter explores the extent to which courts’ expanding protection for gender nonconformists in the workplace reflects, as judicial rhetoric often suggests, a judicial commitment to freedom of gender expression more generally. The chapter concludes that courts are not, in fact, committed to protecting freedom of gender expression in the workplace and, indeed, that such unfettered freedom is both theoretically incoherent as a form of sex discrimination protection and practically unworkable.Less
This chapter explores the extent to which courts’ expanding protection for gender nonconformists in the workplace reflects, as judicial rhetoric often suggests, a judicial commitment to freedom of gender expression more generally. The chapter concludes that courts are not, in fact, committed to protecting freedom of gender expression in the workplace and, indeed, that such unfettered freedom is both theoretically incoherent as a form of sex discrimination protection and practically unworkable.
Joseph Fishkin
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199812141
- eISBN:
- 9780199395576
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199812141.001.0001
- Subject:
- Political Science, Political Theory
Equal opportunity is a powerful idea with broad appeal. Yet the most attractive existing conceptions of equal opportunity cannot be achieved. As long as families are free to raise their children ...
More
Equal opportunity is a powerful idea with broad appeal. Yet the most attractive existing conceptions of equal opportunity cannot be achieved. As long as families are free to raise their children differently, no two people's opportunities will be equal; nor is it possible to disentangle someone's abilities or talents from her background advantages and disadvantages. Moreover, different people need different opportunities, confounding most ways of defining “equal.” This book proposes an entirely new way of thinking about the project of equal opportunity. Instead of focusing on the chimera of literal equalization, it argues for broadening the range of opportunities open to people at every stage in life, in part by loosening bottlenecks in the opportunity structure—the narrow places through which people must pass in order to pursue many life paths that open out on the other side. A bottleneck might be a test like the SAT, a credential requirement like a college degree, or a skill like speaking English. It might be membership in a favored caste or racial group. Reducing the severity of such bottlenecks is one piece of what this book calls opportunity pluralism: building a more open and pluralistic opportunity structure in which people have more of a chance, throughout their lives, to pursue paths they choose for themselves, rather than those dictated by limited opportunities. The book then applies this approach to contemporary egalitarian policy problems: class and access to education, workplace flexibility and work/family conflict, and antidiscrimination law.Less
Equal opportunity is a powerful idea with broad appeal. Yet the most attractive existing conceptions of equal opportunity cannot be achieved. As long as families are free to raise their children differently, no two people's opportunities will be equal; nor is it possible to disentangle someone's abilities or talents from her background advantages and disadvantages. Moreover, different people need different opportunities, confounding most ways of defining “equal.” This book proposes an entirely new way of thinking about the project of equal opportunity. Instead of focusing on the chimera of literal equalization, it argues for broadening the range of opportunities open to people at every stage in life, in part by loosening bottlenecks in the opportunity structure—the narrow places through which people must pass in order to pursue many life paths that open out on the other side. A bottleneck might be a test like the SAT, a credential requirement like a college degree, or a skill like speaking English. It might be membership in a favored caste or racial group. Reducing the severity of such bottlenecks is one piece of what this book calls opportunity pluralism: building a more open and pluralistic opportunity structure in which people have more of a chance, throughout their lives, to pursue paths they choose for themselves, rather than those dictated by limited opportunities. The book then applies this approach to contemporary egalitarian policy problems: class and access to education, workplace flexibility and work/family conflict, and antidiscrimination law.
Samuel R. Bagenstos
- Published in print:
- 2009
- Published Online:
- October 2013
- ISBN:
- 9780300124491
- eISBN:
- 9780300155433
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300124491.001.0001
- Subject:
- Law, Legal History
The passage of the Americans with Disabilities Act (ADA) in 1990 was hailed as revolutionary legislation, but in the ensuing years restrictive Supreme Court decisions have prompted accusations that ...
More
The passage of the Americans with Disabilities Act (ADA) in 1990 was hailed as revolutionary legislation, but in the ensuing years restrictive Supreme Court decisions have prompted accusations that the Court has betrayed the disability rights movement. The ADA can lay claim to notable successes, yet people with disabilities continue to be unemployed at extremely high rates. This book examines the history of the movement and discusses the various, often-conflicting projects of diverse participants. It argues that while the courts deserve some criticism, some may also be fairly aimed at the choices made by prominent disability rights activists as they crafted and argued for the ADA. The book concludes with an assessment of the limits of antidiscrimination law in integrating and empowering people with disabilities, and suggests new policy directions to make these goals a reality.Less
The passage of the Americans with Disabilities Act (ADA) in 1990 was hailed as revolutionary legislation, but in the ensuing years restrictive Supreme Court decisions have prompted accusations that the Court has betrayed the disability rights movement. The ADA can lay claim to notable successes, yet people with disabilities continue to be unemployed at extremely high rates. This book examines the history of the movement and discusses the various, often-conflicting projects of diverse participants. It argues that while the courts deserve some criticism, some may also be fairly aimed at the choices made by prominent disability rights activists as they crafted and argued for the ADA. The book concludes with an assessment of the limits of antidiscrimination law in integrating and empowering people with disabilities, and suggests new policy directions to make these goals a reality.
Michael L. Perlin
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780195393231
- eISBN:
- 9780199914548
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195393231.001.0001
- Subject:
- Psychology, Forensic Psychology
Society is largely blind to the ongoing violations of international human rights law in the context of the institutional commitment and treatment of persons with mental disabilities. Notwithstanding ...
More
Society is largely blind to the ongoing violations of international human rights law in the context of the institutional commitment and treatment of persons with mental disabilities. Notwithstanding a robust set of international law principles, standards, and doctrines, people with mental disabilities live in some of the harshest conditions that exist in any society. The recent ratification of the United Nations Convention on the Rights of Persons with Disabilities forces all nations to take seriously these issues, and the conditions that are faced on a daily basis by persons worldwide who are institutionalized because of mental disability. These conditions are the product of neglect, lack of legal protection against improper and abusive treatment, and, primarily social attitudes (“sanism” and “pretextuality”) that demean, trivialize, and ignore the humanity of persons with disabilities. This book draws attention to these issues, to shed light on a shame that governments continue to ignore, and to invigorate the debate on a social policy issue that remains “beneath the radar” for most of the world’s nations by examining the mistreatment of persons with mental disabilities around the world. This book “matters,” not simply to institutionalized persons and their families, but to all concerned citizens of the world. Governmental inaction (in some cases, through benign neglect; in others, because of malignant motives) demeans human dignity, denies personal autonomy, and disregards the most authoritative and comprehensive prescription of human rights obligations. These issues should matter to all citizens of the world who take human rights seriously, and who care about how we treat those who remain, in many nations, locked away in facilities that violate any concept of fundamental fairness in conditions that still shock the human conscience. They should matter to policymakers, to governmental officials, to mental health professionals, to human rights advocates and activists, and to scholars.Less
Society is largely blind to the ongoing violations of international human rights law in the context of the institutional commitment and treatment of persons with mental disabilities. Notwithstanding a robust set of international law principles, standards, and doctrines, people with mental disabilities live in some of the harshest conditions that exist in any society. The recent ratification of the United Nations Convention on the Rights of Persons with Disabilities forces all nations to take seriously these issues, and the conditions that are faced on a daily basis by persons worldwide who are institutionalized because of mental disability. These conditions are the product of neglect, lack of legal protection against improper and abusive treatment, and, primarily social attitudes (“sanism” and “pretextuality”) that demean, trivialize, and ignore the humanity of persons with disabilities. This book draws attention to these issues, to shed light on a shame that governments continue to ignore, and to invigorate the debate on a social policy issue that remains “beneath the radar” for most of the world’s nations by examining the mistreatment of persons with mental disabilities around the world. This book “matters,” not simply to institutionalized persons and their families, but to all concerned citizens of the world. Governmental inaction (in some cases, through benign neglect; in others, because of malignant motives) demeans human dignity, denies personal autonomy, and disregards the most authoritative and comprehensive prescription of human rights obligations. These issues should matter to all citizens of the world who take human rights seriously, and who care about how we treat those who remain, in many nations, locked away in facilities that violate any concept of fundamental fairness in conditions that still shock the human conscience. They should matter to policymakers, to governmental officials, to mental health professionals, to human rights advocates and activists, and to scholars.
Terri E. Givens and Rhonda Evans Case
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198709015
- eISBN:
- 9780191779602
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198709015.001.0001
- Subject:
- Political Science, Political Theory
The development of antidiscrimination policy in Europe closely mirrored European Union deepening in the 1990s, but its roots lie in developments during the 1980s. Actors in the European Parliament ...
More
The development of antidiscrimination policy in Europe closely mirrored European Union deepening in the 1990s, but its roots lie in developments during the 1980s. Actors in the European Parliament saw a political opening for action with the rise of the radical right in places like France and Germany. In the 1980s and early 1990s, racist acts of violence and the stunning success of radical right political parties across Europe catapulted the issues of immigration, xenophobia, fascism, and racism to the forefront. The European Parliament was only beginning to take on a more important role in the supranational structures that were under construction during the 1980s, but it would play a key role in the development of an anti-racism agenda and what would ultimately become racial antidiscrimination policy for the European Union. This book begins by examining the evolving discourses around racism in Europe from the mid-1980s through the late 1990s. It then links these discourses and country level starting points to the political and social factors which influenced the development of antidiscrimination policy. The study examines the role of the European Parliament, Commission, and key societal actors in the passage of the Racial Equality Directive in 2000. The book then discusses the transposition of the EU Directives into national law and the implementation of antidiscrimination policy. The authors argue that these processes were impacted by the slowdown in European integration in the early 2000s as well as political pressure from more conservative governments than had initially passed the legislation at the EU level.Less
The development of antidiscrimination policy in Europe closely mirrored European Union deepening in the 1990s, but its roots lie in developments during the 1980s. Actors in the European Parliament saw a political opening for action with the rise of the radical right in places like France and Germany. In the 1980s and early 1990s, racist acts of violence and the stunning success of radical right political parties across Europe catapulted the issues of immigration, xenophobia, fascism, and racism to the forefront. The European Parliament was only beginning to take on a more important role in the supranational structures that were under construction during the 1980s, but it would play a key role in the development of an anti-racism agenda and what would ultimately become racial antidiscrimination policy for the European Union. This book begins by examining the evolving discourses around racism in Europe from the mid-1980s through the late 1990s. It then links these discourses and country level starting points to the political and social factors which influenced the development of antidiscrimination policy. The study examines the role of the European Parliament, Commission, and key societal actors in the passage of the Racial Equality Directive in 2000. The book then discusses the transposition of the EU Directives into national law and the implementation of antidiscrimination policy. The authors argue that these processes were impacted by the slowdown in European integration in the early 2000s as well as political pressure from more conservative governments than had initially passed the legislation at the EU level.
Michael L. Perlin
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780195393231
- eISBN:
- 9780199914548
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195393231.003.0017
- Subject:
- Psychology, Forensic Psychology
The existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. ...
More
The existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights. In Asia and the Pacific region, however, there is no such body. Although the Association of Southeast Asian Nations (ASEAN) charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Some of the antipathy flows from past colonialism, and the feeling that human rights values are “Western values,” and some comes from the attitude that human rights mechanisms are a “threat to national sovereignty.” The lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia. The absence of such a body has become even more problematic since the CRPD has been ratified. Without a regional enforcement body, it is impossible to be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities. This lack of optimism is furthered by the general lack of consumer involvement in mental disability treatment issues in Asia, and the serious mental health resource deficiencies in many Pacific Rim nations. As it is unlikely that an Asian regional human rights commission or court will be created in the near future, the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be a bold, innovative, progressive and important step on the path toward realization of those rights. It would also be a likely inspiration for a full regional human rights tribunal in this area of the world. This chapter briefly discusses the absence of human rights tribunals in Asia, and then considers the “Asian values” dispute, concluding that it leads to a false consciousness (since it presumes a unified and homogeneous multiregional attitude toward a bundle of social, cultural, and political issues), and that the universality of human rights must be seen to predominate here (here, I look at China as a case example). It offers a structural outline of a Tribunal, and finally explain why the creation of the DRTAP is timely, inevitable, and essential, if the UN Convention on the Rights of Persons with Disabilities is to be given true life.Less
The existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights. In Asia and the Pacific region, however, there is no such body. Although the Association of Southeast Asian Nations (ASEAN) charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Some of the antipathy flows from past colonialism, and the feeling that human rights values are “Western values,” and some comes from the attitude that human rights mechanisms are a “threat to national sovereignty.” The lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia. The absence of such a body has become even more problematic since the CRPD has been ratified. Without a regional enforcement body, it is impossible to be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities. This lack of optimism is furthered by the general lack of consumer involvement in mental disability treatment issues in Asia, and the serious mental health resource deficiencies in many Pacific Rim nations. As it is unlikely that an Asian regional human rights commission or court will be created in the near future, the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be a bold, innovative, progressive and important step on the path toward realization of those rights. It would also be a likely inspiration for a full regional human rights tribunal in this area of the world. This chapter briefly discusses the absence of human rights tribunals in Asia, and then considers the “Asian values” dispute, concluding that it leads to a false consciousness (since it presumes a unified and homogeneous multiregional attitude toward a bundle of social, cultural, and political issues), and that the universality of human rights must be seen to predominate here (here, I look at China as a case example). It offers a structural outline of a Tribunal, and finally explain why the creation of the DRTAP is timely, inevitable, and essential, if the UN Convention on the Rights of Persons with Disabilities is to be given true life.
Conor O'Dwyer
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9781479876631
- eISBN:
- 9781479877829
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479876631.003.0005
- Subject:
- Political Science, European Union
This chapter shows how the onset of EU leverage began to transform the dynamics of LGBT activism in Poland but not in the Czech Republic. The arcs of activism now began to reverse, with the Polish ...
More
This chapter shows how the onset of EU leverage began to transform the dynamics of LGBT activism in Poland but not in the Czech Republic. The arcs of activism now began to reverse, with the Polish movement strengthening as the Czech one fragmented and deinstitutionalized. In Poland, EU accession helped reframe homosexuality from a question of morality to one of European law and human rights. Polish activists also exploited the opportunity to broker between the national government and the EU regarding the implementation of EU norms. While EU conditionality helped achieve progress, especially regarding antidiscrimination policy, it also set the stage for hard-right political backlash from 2004 to 2007. In the Czech Republic, by contrast, EU accession hardly touched the politics of homosexuality. It sparked no hard-right backlash and was not taken up by rights activists as a tool of brokerage. Instead, Czech activists devoted most of their energies to a project for which the EU accession process offered no leverage, same-sex partnerships, and largely ignored the area for which it did, antidiscrimination policy.Less
This chapter shows how the onset of EU leverage began to transform the dynamics of LGBT activism in Poland but not in the Czech Republic. The arcs of activism now began to reverse, with the Polish movement strengthening as the Czech one fragmented and deinstitutionalized. In Poland, EU accession helped reframe homosexuality from a question of morality to one of European law and human rights. Polish activists also exploited the opportunity to broker between the national government and the EU regarding the implementation of EU norms. While EU conditionality helped achieve progress, especially regarding antidiscrimination policy, it also set the stage for hard-right political backlash from 2004 to 2007. In the Czech Republic, by contrast, EU accession hardly touched the politics of homosexuality. It sparked no hard-right backlash and was not taken up by rights activists as a tool of brokerage. Instead, Czech activists devoted most of their energies to a project for which the EU accession process offered no leverage, same-sex partnerships, and largely ignored the area for which it did, antidiscrimination policy.
Jethro K. Lieberman
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199919840
- eISBN:
- 9780199980376
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199919840.003.0010
- Subject:
- Political Science, Political Theory
This chapter demonstrates the incompatibility of the harm principle with various claims that forms of harmless immorality and other conduct that some people view as reprehensible or disgusting ought ...
More
This chapter demonstrates the incompatibility of the harm principle with various claims that forms of harmless immorality and other conduct that some people view as reprehensible or disgusting ought to be regulated or prohibited. The chapter asserts that under the externality constraint people may not generally have interests in others’ interests. The chapter also rejects communitarian, civic republican, and multiculturalist claims that because communities are sources of value government may regulate conduct that impinges on community norms. Finally, the chapter shows that by overturning law-like custom, antidiscrimination laws are consistent with the harm principle.Less
This chapter demonstrates the incompatibility of the harm principle with various claims that forms of harmless immorality and other conduct that some people view as reprehensible or disgusting ought to be regulated or prohibited. The chapter asserts that under the externality constraint people may not generally have interests in others’ interests. The chapter also rejects communitarian, civic republican, and multiculturalist claims that because communities are sources of value government may regulate conduct that impinges on community norms. Finally, the chapter shows that by overturning law-like custom, antidiscrimination laws are consistent with the harm principle.
Mark Golub
- Published in print:
- 2018
- Published Online:
- February 2018
- ISBN:
- 9780190683603
- eISBN:
- 9780190683634
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190683603.001.0001
- Subject:
- Political Science, American Politics, Political Theory
Discussions of race in American law and politics have been captured by the figure of the color-blind Constitution. Whether embraced as an ideal of constitutional equality or rejected for perpetuating ...
More
Discussions of race in American law and politics have been captured by the figure of the color-blind Constitution. Whether embraced as an ideal of constitutional equality or rejected for perpetuating historical injustice, advocates and critics alike view color-blindness as a refusal of racial consciousness rather than its mobilization. And yet, enacting a color-blind rule may be understood in itself to affect a heightened awareness of race. Accordingly, color-blind constitutionalism represents a particular form of racial consciousness rather than an alternative to it. Challenging familiar understandings of race, rights, and the US Constitution, this book explores how current equal protection law renders the pursuit of racial equality constitutionally suspect. Identifying hierarchy rather than equality as an enduring constitutional norm, Is Racial Equality Unconstitutional? reveals the historical reception of racial equality as a violation of white rights. Arguing against both conservative and liberal redemption narratives, within which racial equality is imagined as the perfection of American democracy, the book calls instead for a break from the constitutional order and refounding upon principles of racial democracy.Less
Discussions of race in American law and politics have been captured by the figure of the color-blind Constitution. Whether embraced as an ideal of constitutional equality or rejected for perpetuating historical injustice, advocates and critics alike view color-blindness as a refusal of racial consciousness rather than its mobilization. And yet, enacting a color-blind rule may be understood in itself to affect a heightened awareness of race. Accordingly, color-blind constitutionalism represents a particular form of racial consciousness rather than an alternative to it. Challenging familiar understandings of race, rights, and the US Constitution, this book explores how current equal protection law renders the pursuit of racial equality constitutionally suspect. Identifying hierarchy rather than equality as an enduring constitutional norm, Is Racial Equality Unconstitutional? reveals the historical reception of racial equality as a violation of white rights. Arguing against both conservative and liberal redemption narratives, within which racial equality is imagined as the perfection of American democracy, the book calls instead for a break from the constitutional order and refounding upon principles of racial democracy.
Simon Topping
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9780813032283
- eISBN:
- 9780813038971
- Item type:
- chapter
- Publisher:
- University Press of Florida
- DOI:
- 10.5744/florida/9780813032283.003.0006
- Subject:
- History, African-American History
After the death of Franklin Roosevelt in April 1954, the Republican Party's hopes of regaining the African American vote, and more importantly the White House, increased and widened. Dewey was shaped ...
More
After the death of Franklin Roosevelt in April 1954, the Republican Party's hopes of regaining the African American vote, and more importantly the White House, increased and widened. Dewey was shaped as the Republican candidate for the incoming 1948 presidential elections with much confidence for the victory of the Republican Party. This chapter focuses on the different bills and policies proposed and passed during the administration of Harry S. Truman, which sought to abolish racial discrimination, promote equality, and bring new attention to the alienation of African Americans. It also discusses the strategies enacted by the Republican Party through Dewy in the hope of regaining the affection of the now black Democrat loyalists. With the hope of somehow curbing the allegiance of the black voters, Dewey advocated the passage of an antidiscrimination bill, although he failed to garner significant following during his election bid, largely because of the seeming insincerity of the party and its negligence to court special-interest votes. The chapter also discusses the increasing call for the GOP to pay more attention to the requirements of African Americans and the necessity to win their votes. It furthermore touches on efforts to pass civil rights and the charter for human freedom, which failed in the hands of Truman due to the strong southern resistance and the seeming complacency of the Truman administration.Less
After the death of Franklin Roosevelt in April 1954, the Republican Party's hopes of regaining the African American vote, and more importantly the White House, increased and widened. Dewey was shaped as the Republican candidate for the incoming 1948 presidential elections with much confidence for the victory of the Republican Party. This chapter focuses on the different bills and policies proposed and passed during the administration of Harry S. Truman, which sought to abolish racial discrimination, promote equality, and bring new attention to the alienation of African Americans. It also discusses the strategies enacted by the Republican Party through Dewy in the hope of regaining the affection of the now black Democrat loyalists. With the hope of somehow curbing the allegiance of the black voters, Dewey advocated the passage of an antidiscrimination bill, although he failed to garner significant following during his election bid, largely because of the seeming insincerity of the party and its negligence to court special-interest votes. The chapter also discusses the increasing call for the GOP to pay more attention to the requirements of African Americans and the necessity to win their votes. It furthermore touches on efforts to pass civil rights and the charter for human freedom, which failed in the hands of Truman due to the strong southern resistance and the seeming complacency of the Truman administration.
Roy L. Brooks
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780300223309
- eISBN:
- 9780300227611
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300223309.003.0003
- Subject:
- Sociology, Race and Ethnicity
This chapter focuses on the socio-legal race problem; namely juridical subordination. The Supreme Court engages in this form of racial subordination when its rulings freeze or impede racial progress ...
More
This chapter focuses on the socio-legal race problem; namely juridical subordination. The Supreme Court engages in this form of racial subordination when its rulings freeze or impede racial progress for the sake of pursuing a nonracist, competing interest. Juridical subordination most often occurs today in the name of racial progress; in other words, when the Court’s vindication of a black equality norm (such as racial omission or racial integration) in reality inhibits black advancement. Since the end of Jim Crow, the black equality interest has been defined in ways that compete not only with the civil-rights-era norms but with other legitimate norms. Focusing on cases involving antidiscrimination law and racial preference (or affirmative action) law, this chapter illustrates how the Court can avoid juridical subordination in its civil rights cases.Less
This chapter focuses on the socio-legal race problem; namely juridical subordination. The Supreme Court engages in this form of racial subordination when its rulings freeze or impede racial progress for the sake of pursuing a nonracist, competing interest. Juridical subordination most often occurs today in the name of racial progress; in other words, when the Court’s vindication of a black equality norm (such as racial omission or racial integration) in reality inhibits black advancement. Since the end of Jim Crow, the black equality interest has been defined in ways that compete not only with the civil-rights-era norms but with other legitimate norms. Focusing on cases involving antidiscrimination law and racial preference (or affirmative action) law, this chapter illustrates how the Court can avoid juridical subordination in its civil rights cases.
Tina Fernandes Botts
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9781447316459
- eISBN:
- 9781447316480
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781447316459.003.0006
- Subject:
- Society and Culture, Gender Studies
This chapter provides an overview of the historical engagement between multiracial people and the law. In doing so, it identifies and examines factors contributing to the failure of current ...
More
This chapter provides an overview of the historical engagement between multiracial people and the law. In doing so, it identifies and examines factors contributing to the failure of current antidiscrimination laws to protect multiracial Americans from racial discrimination. It argues in favor of a distinctive group identity for multiracial Americans, with particular emphasis placed on the need for a distinctive group identity within the framework of antidiscrimination law. It also suggests an additional modification to antidiscrimination law (i.e., the utilization of sociohistorical race) in order to better protect multiracial Americans from racial discrimination.Less
This chapter provides an overview of the historical engagement between multiracial people and the law. In doing so, it identifies and examines factors contributing to the failure of current antidiscrimination laws to protect multiracial Americans from racial discrimination. It argues in favor of a distinctive group identity for multiracial Americans, with particular emphasis placed on the need for a distinctive group identity within the framework of antidiscrimination law. It also suggests an additional modification to antidiscrimination law (i.e., the utilization of sociohistorical race) in order to better protect multiracial Americans from racial discrimination.
Angela Onwuachi-Willig
- Published in print:
- 2013
- Published Online:
- October 2013
- ISBN:
- 9780300166828
- eISBN:
- 9780300166880
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300166828.003.0009
- Subject:
- History, Social History
This chapter examines data from surveys to reflect upon the key questions from the Rhinelander case and to understand its meaning for black-white married and committed couples and their families at ...
More
This chapter examines data from surveys to reflect upon the key questions from the Rhinelander case and to understand its meaning for black-white married and committed couples and their families at the present time. It also considers how being a part of a multiracial collective may help in shaping the individual racial identities of individuals in such families, as well as how such “new” understandings of race may or should influence legal analysis in certain antidiscrimination cases.Less
This chapter examines data from surveys to reflect upon the key questions from the Rhinelander case and to understand its meaning for black-white married and committed couples and their families at the present time. It also considers how being a part of a multiracial collective may help in shaping the individual racial identities of individuals in such families, as well as how such “new” understandings of race may or should influence legal analysis in certain antidiscrimination cases.
