Digital Commons Network^™

Jus Sanguinis Or Just Plain Discrimination? Rejecting A Biological Requirement For Birthright Citizenship Of Children Born Abroad To Same-Sex Couples Via Assisted Reproductive Technology, Thomas Evans

Georgia Law Review

Until recently, the State Department had a policy deeming children born abroad to married same-sex couples to be children born out of wedlock. Then, applying the statute for children born out of wedlock with more rigorous requirements, the State Department only allowed citizenship to pass through a biological relationship between the biological parent and the child.

Although the State Department updated this policy in May 2021 to allow for birthright citizenship of children born abroad to married same-sex couples, the new policy does not go far enough. This Note argues that Congress should amend the Immigration and Nationality Act to …

To Trust Or Not To Trust: Native American Healthcare Improvement In The Supreme Court’S Hands, Katherine Graham

Georgia Law Review

The United States federal government’s relationship with Native American tribes has long been tenuous. Despite years of unjust and inhumane treatment of Native Americans by the government, Congress has attempted to rectify or limit the government’s harm to Native American people but has fallen short of upholding all agreements intended to improve United States-tribal relations. In particular, the government has not always followed treaties between the government and tribes, and the United States Supreme Court has failed to protect Native American rights in many cases. Central to this issue is the 1868 Treaty of Fort Laramie, in which the United …

Complicated Mercy: Compensating The Wrongfully Convicted In Georgia, Elizabeth O'Roark

Georgia Law Review

An exoneree’s story does not end when they walk out of prison and back into society. After spending years in prison for a crime they did not commit, the exoneree must rebuild a life with years of lost income, little credit, and no retirement. Georgia is one of the few states that does not have a statute setting out how to fairly and efficiently compensate its exonerees. Exonerees must instead ask state representatives to present a resolution to the General Assembly. If the resolution passes through both chambers of the legislature, then the exoneree can receive some compensation for the …

No Motion Left Behind: Adjudicating Motions To Remand In Cases Snap Removed To Mdls, Millie Price

Georgia Law Review

Under the current wording of the federal removal statute, 28 U.S.C. § 1441, defendants in some jurisdictions may remove a state action to federal court before an in-state defendant is served. These defendants are taking advantage of the forum defendant rule in 28 U.S.C. § 1441(b)(2). This phenomenon has been coined “snap removals.” Three federal courts of appeals allow such removals, whereas many federal district courts say it is improper. The “home” district court might not be the end point for the case, though. Corporate defendants often ask for the case to be transferred to a pending Multidistrict Litigation (MDL) …

Table Of Contents

Georgia Law Review

No abstract provided.

A First Amendment Law For Migrant Emancipation, Daniel Morales

Georgia Law Review

The First Amendment promises to change our world, but like any legal doctrine, its radical potential is stymied by the status quo bias of the legal system that administers it. For migrants, I urge here, this guarantor of free speech and expression does even less than it does for other subordinated groups. The formal and informal disabilities that migrants face in the public square—like the omnipresent threat of deportation—make existing First Amendment doctrine a weak and unreliable ally in the fight for migrants’ rights. It is possible to imagine another, emancipatory First Amendment law that might better facilitate the alteration …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Georgia Law Review

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit …

Immigration Detention And Dissent: The Role Of The First Amendment On The Road To Abolition, Alina Das

Georgia Law Review

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people’s freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to …

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

The Contested "Bright Line" Of Territorial Presence, Shalini Ray

Georgia Law Review

For this symposium on “Immigrants and the First Amendment,” this Essay considers the current scope of First Amendment protection for noncitizens abroad. Courts have interpreted the constitutional rights of noncitizens to vary with factors including status, ties, and location. But in a recent case, Agency for International Development v. Alliance for Open Society International, the Supreme Court announced that the First Amendment simply does not apply to noncitizens abroad. This Essay considers this new rule and its implications, concluding that a bright-line rule based on territorial presence masks more complex questions about the meaning of “here” and “abroad.”

Fear Foreigners, And Free Expression: A Brief Reflection On Ideological Exclusion And Deportation In The United States, Julia Rose Kraut

Georgia Law Review

“Why should we be afraid of this man and his ideas?” asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.1 In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.2 Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.3 Yet, this time, Mandel’s application for a visa was denied.4

The State Department informed Mandel …

Discrimination, Trump V. Hawaii, And Masterpiece Cakeshop, Christopher C. Lund

Georgia Law Review

This short symposium piece is a comment on two of the Supreme Court’s recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.1 The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.2 One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on …

Centering Noncitizens' Free Speech, Gregory P. Margarian

Georgia Law Review

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

Scholarly Works

The recent Eighth Circuit ruling in Arkansas Times, LP v. Waldrip, a lawsuit revolving around an Arkansas state anti-discrimination bill, has been widely misreported and generally misunderstood. While the decision was actually very narrow, case-specific, and ripe for review, the misleading information presented to the public has led to speculation and fear that similar anti-discrimination legislation in dozens of other states might somehow be constitutionally deficient. This essay will clarify what actually happened in the Arkansas case, and explain why legislators and advocates around the country do not have to worry about this very limited opinion affecting the legality of …

A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli

Scholarly Works

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Systemic Risk Of Contract, Tal Kastner

Scholarly Works

Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this …

Making The Case For Addressing Second-Generation Gender Bias In Public Administration, Helisse Levine, Maria J. D’Agostino, Meghna Sabharwal

Publications and Research

No abstract provided.

Assessing Variation And Change In Newspaper Portrayals Of Muslims: The Influence Of The Trump Election And Differences Across The United States In Local And National Papers, Amy Adamczyk, Emily Greene-Colozzi, Senahan Kiyal Keles, Aida Murati

Publications and Research

Since Donald Trump’s political campaign, Americans have appeared increasingly divided over public opinion issues and US policies with the media seemingly reflecting these divisions. One of Trump’s early initiatives was the “Muslim ban,” which restricted visitors from seven Muslim-majority countries. Focusing on the portrayal of Muslims in over 900 hand coded articles, our study uses multilevel modeling techniques to examine how newspapers changed their frames and claimsmakers in discussions about Muslims before and after Trump was elected. After the election, newspapers were more likely to include government claimsmakers and an immigration frame, and were less likely to mention a radical …

Assessing The Benefits Of College Internships At A Hispanic Serving Institution, Amy Adamczyk, Katheryn Crawford, Yuna Kim

Publications and Research

Few studies have investigated the usefulness of internships at Hispanic Serving Institutions (HSI). Focusing on a 4-year public university (HSI), this study examined differences between the internship and the non-internship students, and changes across the semester for development. A structured internship appears to have some value; including increased interaction with faculty outside the classroom, confidence in verbally expressing ideas, and class presentations.

When And How Does Anti-Semitism Occur? The Different Trigger Mechanisms Associated With Different Types Of Criminal And Non-Criminal Hate Incidents, Matteo Vergani, Dan Goodhard, Rouven Link, Amy Adamczyk, Joshua D. Freilich, Steven Chermak

Publications and Research

We used data from an Australian community register to build a database containing 673 incidents, including both criminal and non-criminal anti-Semitic acts that occurred between October 2013 and September 2017. We conducted bivariate and multivariate analyses to explore the differences in the types of incidents associated with different trigger events. Using time series methods, we found a significant increase in criminal (but not in non-criminal) incidents during the 2014 Israel–Gaza conflict. During Jewish religious festivals, we found a significant decrease in criminal incidents, and a significant increase in non-criminal incidents. After the establishment of the neo-nazi group Antipodean Resistance, we …

8 National Perspectives On Mexican Transnational Eal Teachers: Ideological And Professional Challenges, David Martinez-Prieto, Kristen Lindahl

Bilingual and Literacy Studies Faculty Publications

No abstract provided.

In Defense Of Chapter 11 For Mass Torts, Anthony J. Casey, Joshua C. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

This Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among them is difficult as each claimant seeks to maximize its own recoveries. These are the very collective action and hold-out problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

Coase-Sandor Institute for Law & Economics Research Paper Series

Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …

Streaming Property, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

Faith And Its Effects, Or, Fragments From My Portfolio, Phoebe Palmer

Heritage Material

No abstract provided.

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Georgia Law Review

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

The Color Of Pain: Racial Bias In Pain And Suffering Damages, Maytal Gilboa

Georgia Law Review

For more than half a century, our legal system has formally eschewed race-based discrimination, and nearly every field of law has evolved to increase protections for minority groups historically burdened by racial prejudice. Yet, even today, juries in tort actions routinely consider a plaintiff’s race when calculating compensatory tort damages, and they do so in a manner that systematically results in lower awards to Black plaintiffs than to White. This Article examines this problem, zeroing in on the specific issue of racial bias in calculations of tort damages for pain and suffering.

The severity of a plaintiff’s injury is commonly …

Facebook, Crime Prevention, And The Scope Of The Private Search Post-Carpenter, Connor M. Correll

Georgia Law Review

The Fourth Amendment of the U.S. Constitution protects people “against unreasonable searches and seizures.” The private search doctrine provides a notable exception to the Fourth Amendment, providing that the government may reconstruct a search previously performed by a private party without first obtaining a warrant. The U.S. Supreme Court developed the private search doctrine prior to the advent of the internet; however, modern technology has changed the way that individuals live. What was once done entirely in private is now done alongside ever-present third parties, such as cell phones and virtual assistants.

Facebook and other social media sites complicate Fourth …

No [Concrete] Harm, No Foul? Article Iii Standing In The Context Of Consumer Financial Protection, Annefloor J. De Groot

Georgia Law Review

In the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, the Court held that a bare procedural violation of a federal consumer protection statute is not enough to satisfy Article III’s standing requirement because the alleged injury is not sufficiently concrete. This decision resulted in a sizeable circuit split regarding standing under the Fair Debt Collection Practices Act, with some circuit courts interpreting the holding as narrowing the scope of standing for consumer protection claims, and others maintaining a broader interpretation, allowing plaintiffs to obtain redress for violations of consumer financial protections laws.

In its 2021 ruling in …