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No Soy De Aquí, Ni Soy De Allá: U.S. Citizen Children Are Paying The Price For Our Nation's Broken Immigration System (Comment), Daisy J. Ramirez

The Scholar: St. Mary's Law Review on Race and Social Justice

Current immigration polices continue to force mixed-status family separation and do not provide any attainable avenues for immigration relief. Modern immigration law is complex, filled with statutes and regulations that create waste, delay, and confusion among immigrants, their families, and the United States judicial system. As a result, U.S. citizen children are bearing the costs of a faulty immigration system.

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …

U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt

GW Law Faculty Publications & Other Works

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …

Judicial Deference Of The Board Of Immigration Appeals’ Regulatory Interpretations In Light Of Kisor V. Wilkie, Melissa Fullmer

St. Mary's Law Journal

Abstract forthcoming.

Prospective Overruling Unravelled, Samuel Beswick

All Faculty Publications

Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. It appears unfair and inefficient for novel judicial decisions to apply to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique …

The Future Of Supreme Court Reform, Ganesh Sitaraman, Daniel Epps

Vanderbilt Law School Faculty Publications

For a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans’ rush to confirm a nominee before the election, despite their refusal four years prior to confirm Judge Merrick Garland on the ground that it was an election year. Though Democratic candidate Joe Biden won the Presidency in November, Democrats lost seats in the House and have a majority in the Senate …

Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan

Luke Milligan

The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Peter R. Reilly

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Joshua Gupta-Kagan

Faculty Scholarship

Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.

This Article shows how family-court prosecutors’ roles have never been fully …

Rights As Trumps?, Jamal Greene

Faculty Scholarship

Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In …

Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar

Osgoode Hall Law Journal

Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …

Harmful, Harmless, And Beneficial Uncertainty In Law, Scott Baker, Alex Raskolnikov

Faculty Scholarship

This article examines the impact of four types of law-related uncertainty on the utility of risk-neutral agents. We find that greater legal or factual uncertainty makes agents worse off if enforcement is targeted (meaning that greater deviations from what the law demands lead to a greater probability of enforcement), or if sanctions are graduated (meaning that greater deviations from what the law demands result in higher sanctions). In contrast, agents are indifferent to changes in detection uncertainty induced by variation in enforcement resources or to changes in sanction uncertainty arising from legally irrelevant factors. Finally, risk-neutral agents benefit from greater …

Problematika Peninjauan Kembali Dalam Sistem Peradilan Pidana Pasca Putusan Mahkamah Konstitusi Dan Pasca Sema Ri No. 7 Tahun 2014 (Suatu Analisa Yuridis Dan Asas-Asas Dalam Hukum Peradilan Pidana), Seno Wibowo Gumbira

Jurnal Hukum & Pembangunan

Problems of extraordinary legal remedy on Reconsideration, especially in the criminal justice process in Indonesia following the Ruling of judicial review of the Constitutional Court Number 34 IPPU-XI I 2013 and SEMA Decree No. 7 of 2014 issued by the Supreme Court had the same problem juridical in contradictory with the principles both within the criminal justice system and the principle of the science of law in Indonesia, those principles include the principle of ne bis in idem, the principle of justice which one quick, simple and low cost, the principle of litis finiri oportet, …

Transparency And Comparative Executive Clemency: Global Lessons For Pardon Reform In The United States, Andrew Novak

University of Michigan Journal of Law Reform

This Article argues for transparency in the clemency process and contends that the concept of clemency as a benign sovereign’s “act of grace” is no longer appropriate in the modern world where executive action is subordinate to principles of constitutional due process and administrative equity. Despite calls for federal clemency reform in the United States, little comparative research examines clemency elsewhere in the common law world. This Article compares common law countries’ constitutional clemency mechanisms designed to promote openness, public and victim participation, and rational decision-making. In addition, this Article proposes four reforms to the U.S. pardon system that other …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Brooklyn Law Review

The decade-and-a-half period when Earl Warren served as the fourteenth Chief Justice (1953–1969) was marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association, and religion, voting rights, and more. These decisions led to positive, fundamental changes in the lives of millions of less advantaged Americans who had been historically disfavored because of their race, nationality, gender, socioeconomic class, or political views. The legacy of the Warren Court is one of an institution committed to “a dedication in the law to the timeless ideals of ‘human dignity, individual rights, …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss

Faculty Scholarship

The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining …

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

Sexual Assault And Rape In The Military: The Invisible Victims Of International Gender Crimes At The Front Lines, Stella Cernak

Michigan Journal of Gender & Law

In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors …

Substantive Habeas, Kimberly A. Thomas

Articles

Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …

Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer

Richard C. Boldt

No abstract provided.

Democracy-Assisting Judicial Review And The Challenge Of Partisan Polarization, Terri Peretti

Utah Law Review

This Article recommends abandoning the democracy-assisting idea and instead exploring ways to prevent the Court from being enlisted in extreme and unrepresentative causes. Reform ideas should focus on increasing and regularizing turnover on the Court and encouraging the selection of more representative Justices, an outcome made more likely by increasing the representativeness of the elected officials who choose the Justices. Absent a crisis, of course, it is highly unlikely that any such reforms will be adopted. Nonetheless, it is a worthwhile exercise to think about how to enhance representational and consensus-building processes in the presence of growing partisan polarization. And …

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

The Texas State Office Of Administrative Hearings: Establishing Independent Adjudicators In Contested Case Proceedings While Preserving The Power Of Institutional Decision-Making, Ron Beal

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

State Agency-Based V. Central Panel Jurisdiction: Is There A Deference?, A. Michael Nolan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Journal Articles

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan Chen

Research Collection Yong Pung How School Of Law

The exercise of prosecutorial discretion is a unique executive act that continues to be very well-protected from public scrutiny in many jurisdictions throughout the world. In this article, I attempt to survey virtually the entire body of case law on the limits of prosecutorial discretion in Singapore. Probably because prosecutorial discretion is protected by the Constitution, it took a while for the Singapore courts to retreat from its initial characterisation of the discretion as absolute and outside the scope of any form of review. Against a wider backdrop of increasing rights-consciousness (especially within the courts) and the public demand for …

The Eroding Preponderance Standard: The Dc Circuit Strikes Back, Robert J. Davis

Robert J Davis

The open-ended holding of the United States Supreme Court in Boumediene v. Bush has given the DC Circuit an enormous degree of discretion in its handling of Guantanamo detention cases. Combined with the monopoly review power over detention cases given to the DC Circuit, the result has been a diminishing and arguably meaningless standard of evidentiary review for detainees. This article examined recent decisions in Al-Latif and Al-Adahi to pierce the veil on the Circuit Court judges who hold the fate of detainees in their hands.

Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference?, John Gabriel Woodlee

Duke Law Journal

Many proponents of the Federal Sentencing Guidelines envisioned a system in which a politically insulated agency would craft guidelines based on empirical study. This vision of the now-advisory Guidelines survives in Supreme Court opinions that appear to accept that the work of the U.S. Sentencing Commission, the agency tasked with formulating the Guidelines, is driven largely by empirical analysis. This vision has created uncertainty, however, about how much deference courts should show particular Guidelines-such as Section 2G2.2, the Guideline applicable to possession of child pornography- that do not reflect empirical study by the Commission, but that have instead been shaped …