Human Rights and Constitutional Democracy

This essay reviews Professor Jamie Mayerfeld\u27s book, The Promise of Human Rights. I am sympathetic to the broad contours of Professor Mayerfeld’s argument. Nevertheless, this essay challenges portions of his account. Part One addresses the topic of international oversight. Mayerfeld makes a powerful theoretical argument in support of his claim that increased international oversight could help strengthen human rights protections in the United States. Here, though, I think his account omits some important information and gives insufficient weight to current political realities. Part Two focuses on what Mayerfeld calls the United States’ “self-exemption policy.” In brief, this is the U.S. policy of refusing to ratify most human rights treaties and of ratifying other treaties subject to reservations, understandings, and declarations that limit the domestic effect of ratified treaties in the United States. I agree with much of his critique of the self-exemption policy. Even so, Part Two contends that there is a significant tension between the self-exemption policy and Mayerfeld’s defense of the democratic legitimacy of international human rights law because the self-exemption policy exacerbates the tension between majoritarian democratic principles and the domestic enforcement of international human rights norms

GUNS, ABORTION AND COURTS

The Supreme Court decided both Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen in June 2022. Bruen involves gun rights and incorporation doctrine. Dobbs addresses abortion rights and substantive due process (SDP). However, the doctrinal distinction between SDP and in- corporation is untenable. Both doctrines are rooted in the Four- teenth Amendment Due Process Clause; neither finds support in the text or original understanding of the Fourteenth Amend- ment. The Court applies the same historical test for both SDP and incorporation cases to determine which rights the Due Process Clause protects. Both doctrines address legal issues where states traditionally enjoyed broad autonomy. The Court’s his- torical test fails to provide a principled justification for the cen- tral feature of both doctrines: the decision to replace a consistent historical tradition of state autonomy with a new federal con- stitutional rule that mandates national uniformity. Before WW II, the Court treated SDP and incorporation as a single doctrine; it invoked natural law to justify that doctrine. This article contends that natural law provides the only theo- retically coherent rationale for the doctrine. The article defends a natural law test linked to the human rights principles in the Universal Declaration of Human Rights. The human rights (HR) test offers three main advantages over the historical test. First, the HR test is more compatible with the constitutional principles of dual sovereignty and legis- lative primacy. Second, the HR test is less subjective and less prone to manipulation than the historical approach. Third, the natural law, HR theory provides a principled justification for the decision to replace a historical tradition of state autonomy with a uniform, federal constitutional rule. Under the HR test, the right to bear arms does not qualify as a fundamental right. In contrast, there is a plausible argument that a woman’s right to terminate her pregnancy is a fundamental right, but that ar- gument is not a slam dunk

Section 230 and the Duty to Prevent Mass Atrocities

Of course, any proposal to create a statutory exception to section 230 immunity raises a set of complex questions about the proper scope of such an exception. This article identifies the key issues that would need to be resolved if Congress decided to create an exception along these lines. The remainder of this article consists of three parts. The first part explains why removal of immunity from civil liability is an appropriate mechanism to help prevent use of social media to incite or induce commission of mass atrocity crimes. The second part contends that the exception to section 230 immunity should apply to genocide and crimes against humanity, but not to terrorism or war crimes. The final part discusses a series of other issues that Congress would need to address to determine the proper scope of any such exception

California\u27s Climate Diplomacy and Dormant Preemption

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate change, including agreements with both national and sub-national governments.Governor Brown’s international diplomacy raises two distinct constitutional concerns. First, the Compact Clause provides: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact . . . with a foreign Power.” California’s cap-and-trade agreement with the Government of Québec (the “Linking Agreement”) is vulnerable to a constitutional challenge in this respect. Second, the Foreign Commerce Clause grants Congress power “to regulate Commerce with foreign Nations.” The Supreme Court has held that state laws may violate the Dormant Foreign Commerce Clause if they “prevent this Nation from ‘speaking with one voice’ in regulating foreign commerce.” The Linking Agreement may also run afoul of the Dormant Foreign Commerce Clause. Although the matter is not free from doubt, I conclude that the Linking Agreement does not violate the Dormant Foreign Commerce Clause. However, the Agreement may be unconstitutional under the Compact Clause, absent congressional consent. The Conclusion considers options available to Governor Brown to mitigate potential constitutional difficulties

p21WAF1/CIP1 Upregulation through the Stress Granule-Associated Protein CUGBP1 Confers Resistance to Bortezomib-Mediated Apoptosis

p21(WAF1/CIP1) is a well known cyclin-dependent kinase inhibitor induced by various stress stimuli. Depending on the stress applied, p21 upregulation can either promote apoptosis or prevent against apoptotic injury. The stress-mediated induction of p21 involves not only its transcriptional activation but also its posttranscriptional regulation, mainly through stabilization of p21 mRNA levels. We have previously reported that the proteasome inhibitor MG132 induces the stabilization of p21 mRNA, which correlates with the formation of cytoplasmic RNA stress granules. The mechanism underlying p21 mRNA stabilization, however, remains unknown.We identified the stress granules component CUGBP1 as a factor required for p21 mRNA stabilization following treatment with bortezomib ( =  PS-341/Velcade). This peptide boronate inhibitor of the 26S proteasome is very efficient for the treatment of myelomas and other hematological tumors. However, solid tumors are sometimes refractory to bortezomib treatment. We found that depleting CUGBP1 in cancer cells prevents bortezomib-mediated p21 upregulation. FISH experiments combined to mRNA stability assays show that this effect is largely due to a mistargeting of p21 mRNA in stress granules leading to its degradation. Altering the expression of p21 itself, either by depleting CUGBP1 or p21, promotes bortezomib-mediated apoptosis.We propose that one key mechanism by which apoptosis is inhibited upon treatment with chemotherapeutic drugs might involve upregulation of the p21 protein through CUGBP1