Supreme Court of the United States Commons^™

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …