The Baldy Center Blog features interdisciplinary perspectives on research and current events from interdisciplinary UB scholars whose work intersects with law, legal institutions, and social policy. New blogs are generally released twice a month during each semester.
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Julia Merante, a second-year law student at the University at Buffalo School of Law, is host/producer for the 2021-22 Edition of The Baldy Center Blog. Merante is the Vice President of the Jessup International Moot Court, a Human Rights Fellow at Legal Aid, a Student Ambassador, and an Associate of the Buffalo Environmental Law Review Journal. The award-winning poet and essayist graduated SUNY Geneseo summa cum laude with a Bachelors Degree in English, Biology, and Human Development. Merante plans to become a public interest advocate, and then become an educator to continue engaging in important, legal scholarship.
Professor, UB School of Law; Director, The Baldy Center
Associate Director, The Baldy Center
Blog Author: Paul Linden-Retek, Lecturer in Law & Society; Research Fellow at The Baldy Center
Introduction: The devastating images of chaos and suffering in Afghanistan have left an indelible mark on citizens and policy-makers in the West. They have made the evacuation of those Afghans who served alongside U.S. and European militaries a moral obligation—and raised the question whether that obligation must extend, as well, to any and all Afghans who are imperiled by the return of Taliban rule.
Published October 11, 2021
'Safe third countries’ and our obligations to others
Blog Author: Paul Linden-Retek, Lecturer in Law & Society; Research Fellow at The Baldy Center for Law and Social Policy
Keywords: Conflict and Post-Conflict Studies; Culture and Society, Health and Society; Inequality; Human Rights, Civil Rights; International Relations, Law, Trade and Globalization; Law and Society; Legal and Professional Ethics; Social Justice and Social Change; Politics; Public Policy.
The devastating images of chaos and suffering in Afghanistan have left an indelible mark on citizens and policy-makers in the West. They have made the evacuation of those Afghans who served alongside U.S. and European militaries a moral obligation—and raised the question whether that obligation must extend, as well, to any and all Afghans who are imperiled by the return of Taliban rule.
The pledge that many countries—Canada, the United Kingdom, the United States, among them—will resettle tens of thousands of Afghan refugees is a positive development. But it is only a beginning—and not solely in the sense that these quotas remain far too conservative and that many more Afghans can build a home with us, safely and fairly. These policies are a beginning, too, in that we must think carefully about how to sustain such moral commitments over time.
In today’s political climate, the commitment of states to their obligations under international refugee law is a fragile, often fleeting affair. French President Emmanuel Macron, while expressing solidarity with Afghans, immediately added that Europe must protect itself against ‘major irregular migratory flows’. The leader of Germany’s Christian Democrats tweeted that Germany must not repeat 2015, when the country opened its borders to Syrian refugees.
If the recent history of mass migration is a guide, we will see states, particularly those in the Global North, enact policies designed to control and to impede the free movement of refugees seeking safety. Some will be plain to see: the construction of border walls, the interdiction of ships at sea. Many of these efforts will be illegal. They will violate key provisions of the 1951 Refugee Convention and its codifications in domestic law—most prominently the principle of ‘non-refoulement’, one of international human rights law’s most sacred principles that prohibits states from returning anyone to where they will face danger of persecution.
Some of these actions, however, will have the cover of law. Not only will they appear to pass international legal muster; they will make active use of specific, long-standing legal concepts in refugee law itself to effectuate their goals of preventing refugees’ free movement. Among them is the so-called ‘safe third country’ (STC) concept.
The concept’s fundamental assumption is that certain asylum seekers may be returned, without full scrutiny of their asylum request, to third countries if those states can be considered safe. It first emerged from the conviction that the uneven distribution of asylum seekers across the European Union was due to ‘forum shopping’ by applicants, who chose to travel to the Member State they perceived as more sympathetic to their plight. The principle has a number of applications and uses: as a filter for the admissibility of asylum claims and in some cases as a basis for exclusion from refugee status at the merits phase of proceedings; and as a justification for blocking the passage of refugees in transit or for summarily returning those who have reached national territory before they file a claim to protection.
Scholars of the concept have focused their attention principally on the conditions under which STC transfers lawfully accord with the 1951 Convention’s guarantees of effective protection of individual rights. Many have pointed to the difficulties of securing such guarantees on the ground and have warned that the ‘safe third country’ concept is often unworkable in practice. Only a few studies have addressed the lawfulness of the concept itself from a refugee law and human rights perspective, and this without reaching a definite conclusion—and not discounting the legality of the STC idea itself.
In my recent work, I examine the effects of STC rules in the European Union (through the Dublin Regulation and in arrangements with Turkey) and in bilateral asylum cooperation agreements between the United States and Mexico, Guatemala, El Salvador, and Honduras. I offer a new analytic frame. I reconceive the nature of the fundamental harm at stake in the ‘safe third country’ concept as a violation not, in the first instance, of the effective protection of individual human rights but instead of the principle of democratic responsibility. The key wrong is better conceptualized as a relational and distributive harm before it is felt as an individual one. It is relational in that it distorts the character of the relationship between the removing state and the individual refugee. And it is distributive in that it unfairly maldistributes responsibilities among states for the protection of refugee rights. My argument does not deny that individual rights violations do indeed come as effects of that core harm. But as effects, they do not yet reveal the most vital dynamics of the concept—and why, even should its applications be made to satisfy individual rights minima, the ‘safe third country’ concept would remain immoral and unlawful.
Focusing on individual rights protection alone is too passive a mode of legal critique—and, as I argue, inadequately reflects important doctrinal innovations in international human rights law. New conceptions of ‘functional jurisdiction’, for example, that emphasize creative, evolving theories of effective control and the duty to prevent harm are usefully understood as relational concepts. Democratic responsibility also makes clearer sense of why performance of treaty obligations in good faith requires the fair distribution of burdens. The core illegality of the safe third country concept lies in the manner it insulates the state from accountability in its relations with the refugee and the foreigner alike.
Consider how STC rules can entail subtle but consequential shifts in the burdens and standards of proof required of refugees seeking asylum. Under the Trump Administration’s modification to asylum procedures in the United States, applicants who traveled through safe third countries were automatically subject to withholding of removal proceedings, which demand a higher standard of proof for establishing fear of persecution than do petitions for asylum and disregard any justification for the refugee’s secondary movement. These shifts alter the dispositions of the questions asked and the testimony required—and in so doing change the nature of what the state hears. They displace in their own ways the applicant’s agency: they fragment the integrity of the story a refugee can wish to tell, make it more difficult to understand how trauma can inform inconsistencies in that story, and thus prevent a responsive judgment on the merits of the claim to protection.
Seeing these broader dimensions of asylum law matters deeply. The language of rights can often appear too narrow. But we should find more in human rights and affirm, indeed, what those who assert rights for themselves have long known: that while a rights claim might seek redress for an individual harm, it also indicts the relations of recognition, power, and material distribution that make this harm possible.
All of this suggests that the normative horizon of international human rights law is not exhausted by the protection of the individual. The rights of refugees defend not only those who seek asylum—they also promise to restore concerns about equality and fairness to our sense of the world. Today, and in the months ahead, we should not close our eyes to them.
Please see the Boston Review article, Whose Suffering Matters', by Dr. Paul Linden-Retek, 'here.
Blog Author: Carole Emberton, PhD, Associate Professor, Department of History
Introduction: In the wake of George Floyd’s murder in May 2020, a grassroots movement to remove, and in some cases reimagine, Confederate monuments has refocused national conversations about racial justice, memory, and public space. While some have lamented these removals as an effort to “erase history,” others point out that these edifices represented only a mythologized past that itself erased the experiences of enslaved people and their descendants.
Published September 28, 2021
Monuments to the Enslaved
Blog Author: Carole Emberton, PhD, Associate Professor, Department of History
Keywords: African-American History; Conflict and Post-Conflict Studies; Culture and Society; Human Rights, Civil Rights; Social Justice and Social Change; Modern Architecture; Politics; Race, Law, and Policy
In the wake of George Floyd’s murder in May 2020, a grassroots movement to remove, and in some cases reimagine, Confederate monuments has refocused national conversations about racial justice, memory, and public space. While some have lamented these removals as an effort to “erase history,” others point out that these edifices represented only a mythologized past that itself erased the experiences of enslaved people and their descendants.
While sites like Whitney Plantation in Louisiana have centered the enslaved experience, monuments that memorialize slavery and enslaved people are not nearly as numerous as those that commemorate white slaveholders. However, there is a cache of historical documents that acts as a memorial to slavery that was in part created by the enslaved themselves.
In my forthcoming book, To Walk About in Freedom: The Long Emancipation of Priscilla Joyner, I use the Federal Writers’ Project (FWP) Ex-Slave Narratives to explore the lived experiences of the charter generation of freedom — the men and women who were born into slavery but who came of age during and after the Civil War. As part of the New Deal in the 1930s, the FWP conducted over 2,000 interviews with formerly enslaved people, who were then in their 70s, 80s, and 90s. Many had been children during the war, but they recalled not only their own memories of slavery and freedom but also stories handed down to them by parents and grandparents. These interviews represent one of the largest and perhaps only federally-funded public history projects in the United States.
Previous histories of emancipation in the United States have focused on freedpeople’s efforts to obtain economic justice as well as civil and political rights. But the emancipation stories I feature in To Walk About in Freedom reveal more intimate struggles. Priscilla Joyner, whose emancipation story anchors the book, searched her entire life for the truth about her parentage. Raised by a white slaveholding woman who claimed to be her mother, Priscilla grew up isolated from other Black people and tormented by the white woman’s husband and other white children. It was only after she went to live with “her people,” a community of freedpeople in a neighboring county, did she finally begin to understand the meaning of freedom.
Priscilla’s struggles to find love and belonging are echoed throughout the FWP interviews. They evoke the emotional history of freedom, a subject that is sometimes obscured in other historical sources. But those needs are the center of all movements for social justice, including our current ones. The presence of Confederate statues have long signaled to Black people that they do not belong, that they are not welcome, that they are not part of the larger social fabric of a particular community. Our efforts to remove those monuments are based in the hope that other barriers to full inclusion and participation will come down as well.
Blog Author: R. Lorraine Collins, PhD, Associate Dean for Research, Department of Community Health and Health Behavior School of Public Health and Health Professions
Introduction: On March 31, 2021, Governor Andrew Cuomo signed the New York Marijuana Regulation and Taxation Act into law. The new law is designed to establish a framework for regulating the cannabis industry in New York and to providing adult access to recreational cannabis. The retail market likely will be launched in 2023, following the establishment of the Office of Cannabis Management and other necessary entities.
Published September 13, 2021
Medical and Recreational Cannabis Laws are Being Passed Even Though We Do Not Know Much about Its Effects
Blog Author: R. Lorraine Collins, Associate Dean for Research, Department of Community Health and Health Behavior School of Public Health and Health Professions
Keywords: Cannabis, Marijuana, Policies, Medical Cannabis, Adult-Use Recreational Cannabis, Health and Society, Economic and Community Development, Public Policy
On March 31, 2021, Governor Andrew Cuomo signed the New York Marijuana Regulation and Taxation Act into law. The new law is designed to establish a framework for regulating the cannabis industry in New York and to providing adult access to recreational cannabis. The retail market likely will be launched in 2023, following the establishment of the Office of Cannabis Management and other necessary entities.
This law builds on New York’s previous passage of a Medical Marijuana statute in July 2014. In passing laws to regulate medical and recreational cannabis, New York joined a number of states that previously had approved access to cannabis. Currently, a total of 37 states have approved the use of cannabis for a range of medical conditions and 18 states plus Washington DC now allow access to recreational cannabis. The laws were passed using rationales that ranged from the need to undermine access to illegal cannabis, which can result in unsafe products, to the tax benefits that result from the legal retail sale of cannabis products.
While some of these arguments have merit, it is important to highlight that there is little or no research to support the use of cannabis for certain medical conditions. There also are many myths about the benefits and lack of harms of recreational cannabis.
In the US, the road to broadening access to cannabis began in 1996 when California advocates for cannabis use narrowly passed Proposition 215, which allowed for medical use of cannabis. Based on their success in California, cannabis advocates in 13 of the 18 states that have passed recreational cannabis laws have done so based on majority votes for “citizen initiatives”. A few states, including New York, have legalized recreational cannabis through legislative action. Meanwhile, since 1970, the federal Drug Enforcement Agency (DEA) has designated cannabis as a Schedule I substance. This designation was based on the DEA’s determination that cannabis had: 1) a high potential for abuse; 2) no currently accepted medical uses; and 3) was not safe. To put this into context, heroin, LSD, and mescaline also are Schedule 1 drugs. The DEA Schedule 1 designation of cannabis means that it remains illegal based on federal law.
Currently, the US consists of a patchwork of cannabis regulations covering everything from the number of plants an individual can grow at home, to tax rates, and the marketing of cannabis products. For the most part, the regulation of medical and recreational cannabis is not based on research, but rather on advocacy and case studies. In New York State’s Department of Health medical cannabis program, conditions for which cannabis can be used include Cancer, Epilepsy, HIV/AIDS, ALS, PTSD, Parkinson's disease, MS, Chronic pain, Spinal cord injury with spasticity, and Opioid Use Disorder. As reviewed by the National Academies of Sciences, Engineering and Medicine, in 2017, there is little or no evidence as to the effectiveness of cannabis for treating many of these conditions. The lack of evidence does not seem to matter. In New York and numerous other states, medical conditions are added to the list based on advocacy, including by affected individuals, special interests, and case studies. Neither of these is an informed or credible basis for advocating for medical use of a drug.
Our society has accepted the use of alcohol and tobacco, each of which has been documented to produce harms to health (e.g., cancer) and other negative outcomes. However, neither alcohol nor tobacco is being promoted as having medical benefits. Those substances also are complex but are easier to study in humans because we have science-based definitions as to dose and mode of use. They do not face the barriers of the DEA’s Schedule 1 designation. To better understand cannabis and its effects, including its benefits and harms, we need to remove the Schedule 1 designation to begin to answer the many complex questions about this increasingly popular drug.
The public needs to understand that cannabis is a very complex substance. The plant consists of more than 500 phytochemicals and 104 cannabinoids. The most commonly studied of the cannabinoids are Δ9tetrahydrocannabinol (THC, which has psychoactive effects) and Cannabidiol (CBD, which is not psychoactive). We need to learn more; however, the Schedule 1 designation is a major barrier to studying the components and effects of cannabis. Researchers need to be approved by the DEA and the Food and Drug Administration (FDA), and must source their cannabis from the National Institute on Drug Abuse. In some cases, this approval process can take years. We have approved the medical and recreational use of cannabis, but still have not begun to answer many basic questions as to dose, potency, and ratio of THC to CBD for treating medical conditions and lessening cannabis harms.
National Academies of Sciences, Engineering and Medicine, Contributor/author. (2017). The health effects of cannabis and cannabinoids: The current state of evidence and recommendations for research. Washington, DC: National Academies Press. doi: 10.17226/24625
Blog Author: Catherine Cook-Cottone, Professor, Director, Advanced Certificate in Mindful Counseling, UB Graduate School of Education
Introduction: The American Bar Association’s (ABA) National Taskforce on Lawyer Well-Being released the The Path to Lawyer Wellbeing Report in 2017. The report begins, “To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being.” The report cites studies that reveal the high rates of chronic stress, depression and substance abuse among lawyers and law students, what they describe as the toxicity of the profession, and the stigma associated with help seeking behaviors. The report held as its central guiding principle that well-being is an indispensable part of a lawyer's duty of competence.
Published August 31, 2021
The Mindful Lawyer
Blog Author: Catherine Cook-Cottone, Professor, Director, Advanced Certificate in Mindful Counseling, UB Graduate School of Education
Keywords: Health and Society, Social Psychology, well-being, mindfulness, meditation Yoga therapy, substance abuse.
The American Bar Association’s (ABA) National Taskforce on Lawyer Well-Being released the The Path to Lawyer Wellbeing Report (see lawyerwellbeing.net) in 2017. The report begins, “To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being.” The report cites studies that reveal the high rates of chronic stress, depression and substance abuse among lawyers and law students, what they describe as the toxicity of the profession, and the stigma associated with help seeking behaviors. The report held as its central guiding principle that well-being is an indispensable part of a lawyer's duty of competence.
Lawyers and the practice of law focus on the needs and concerns of others (Riskin, 2002; Scott, 2018). Often there is a winner and loser mindset; disputants are adversaries -- if one wins, the other must lose. For some, it can feel like there is a reduction of deeply important and intensely personal disputes to financial settlements or judgements: a reduction of human needs to material outcomes (Riskin, 2002). Deep acting is frequently required in which the lawyers’ personal reactions and feelings are masked while professional services are exacted (Kadowaki, 2015). The legal profession values external accolades such as high grades, awards, rankings, and prestigious jobs. Inner experiences such as feelings, a sense of self, and personal values, meaning, and purpose often take a back seat exacerbating risk for depression, anxiety, and substance use.
A survey of nearly 13,000 licensed, employed attorneys found that 28% experienced depression, 19% anxiety, and 20.6% problematic drinking (Krill, Johnson, & Albert, 2016). Suicidal thoughts were reported by 11.5% of respondents (Krill et al., 2016). Interestingly, 75% of respondents skipped over the section of drug use with those who completed the section reporting use of stimulants (74.1%), sedatives (51.3%), tobacco (46.8%), marijuana (31.0%) and opioids (21.6%). Of even more concern is that only 6.8% reported past treatment for alcohol or drug use. The two largest barriers to getting help were not wanting anyone to know they needed help and privacy/confidentiality concerns. Similar findings were discovered in a survey of law students (Organ, Jaffe, & Bender, 2016).
The Mindful Lawyer
The Well-Being Taskforce offered solutions. First, lawyers, judges, and law students should be educated on well-being issues. Second, small incremental steps are needed to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession. Decreasing stigma associated with seeking help, normalizing treatment for mental and substance use disorders, crisis intervention protocols, and changing the culture through education and practice are detailed as critical to the pathway forward.
The Well-Being Taskforce highlights mindfulness, which doesn’t detail what we do, but helps us remain connected to our own inner experiences as we work to relate to, and sometimes solve, external challenges. In her review of mindfulness practices for lawyers, Scott (2015) documents the components of mindfulness: awareness, paying attention non-judgmentally and on purpose, and cultivating non-judgmental awareness in a sustained and particular way (mindful practices).
In mindfulness practices like meditation and yoga, you practice noticing the inner and outer experiences and simply being with them. What is striking about mindfulness-based practices, is that they do not ask us to judge, push away, ignore or pathologize our anxieties, depressive thoughts, and compulsions. It asks us to have a relationship with them. Specifically, mindfulness practice is about noticing and naming an experience (e.g., an anxious thought, sadness, loss) and then to relate to it with a sense of kind curiosity, rather than judgment. Ultimately, mindfulness-based practices ask us to balance two truths- (1) we must accept and be with what is and (2) it is this very acceptance that creates a powerful place from which we can make changes.
Scott details short mindfulness exercises specifically for lawyers in her 2015 review. Among the practices that Scott (2015) offers for lawyers is the compassion meditation. Try it and see what you think. It was created to help you be with your difficult feelings about a challenging person and to support self-regulation, tact, and tolerance.
Although mindfulness is not a substitute for counseling or professional help, it can be a subtle and powerful practice that can begin to shift the how of your daily work in ways that promote resilience, well-being, and a more effective you as lawyer and a human being with well-being.
Kadowaki, J. (2015). Maintaining professionalism: Emotional labor among lawyers as client advisors. International Journal of the Legal Profession, 22(3), 323-345.
Krill, P. R., Johnson, R., & Albert, L. (2016). The prevalence of substance use and other mental health concerns among American attorneys. Journal of Addiction Medicine, 10(1), 46.
Riskin, L. L. (2002). The contemplative lawyer: On the potential contributions of mindfulness meditation to law students, lawyers, and their clients. Harv. Negot. L. Rev., 7, 1.
Scott, C. (2018). Mindfulness in law: A path to well-being and balance for lawyers and law students. Ariz. L. Rev., 60, 635.