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Articles 1 - 30 of 33
Full-Text Articles in Law
Special Immigrant Juvenile Status: Problems With Substantive Immigration Law And Guidelines For Improvement, Maria V. Martorell
Special Immigrant Juvenile Status: Problems With Substantive Immigration Law And Guidelines For Improvement, Maria V. Martorell
Maria V Martorell
There is a long-standing tradition in the justice system of recognizing that legal matters involving minors are inherently different, requiring laws to protect children in the courthouse and in society. The juvenile system of justice began in the United States in 1824 and was designed for the benefit of children. The purpose of creating a separate system for juveniles was “(1) to separate children from adult offenders and (2) to rehabilitate” juveniles. Most juvenile courts have exclusive jurisdiction over the majority of cases involving minors, and these are transferred to the adult court system only when it “serve[s] the best …
Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling
Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling
Jonathan Stribling
This paper argues for legal principles to remedy the harm done to those least responsible for yet most affected by climate change. It examines approaches to developing the concepts of ecological and climate debt in U.S. law. This paper argues for the importance of understanding ecological debt and particularly “climate debt” in order to sustainably remedy climate change. The paper also argues that the principles of capacity and responsibility, which are the basis of the Greenhouse Development Rights (GDR) framework, are critical to remedying climate debt and should be included in global climate negotiations and U.S. environmental law.
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
Daniel Kanstroom
This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …
Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11th, Daniel Kanstroom
Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11th, Daniel Kanstroom
Daniel Kanstroom
In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and …
The Shining City And The Fortress: Reflections On The “Euro-Solution” To The German Immigration Dilemma, Daniel Kanstroom
The Shining City And The Fortress: Reflections On The “Euro-Solution” To The German Immigration Dilemma, Daniel Kanstroom
Daniel Kanstroom
No abstract provided.
Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom
Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom
Daniel Kanstroom
In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and …
Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom
Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom
Daniel Kanstroom
The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …
"Passed Beyond Our Aid:" U.S. Deportation, Integrity, And The Rule Of Law, Daniel Kanstroom
"Passed Beyond Our Aid:" U.S. Deportation, Integrity, And The Rule Of Law, Daniel Kanstroom
Daniel Kanstroom
The United States is still in the midst of a massive deportation experiment that is exceptionally sweeping and harsh by virtually any historical or comparative measure. In the last twenty-five years, the number of non-citizen deportations has exceeded 25 million. It is therefore important to think critically about how deportation is really working, especially as to many hundreds of thousands of green-card holders. These individuals have grown up, been fully acculturated, attended school, and raised families in the United States. Upon deportation, they are separated from their families and sent to places where they frequently have few acquaintances, do not …
The Right To Deportation Counsel In Padilla V. Kentucky: The Challenging Construction Of The Fifth-And-A-Half Amendment, Daniel Kanstroom
The Right To Deportation Counsel In Padilla V. Kentucky: The Challenging Construction Of The Fifth-And-A-Half Amendment, Daniel Kanstroom
Daniel Kanstroom
The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful deportations. It may also help some deportees who have been wrongly or unjustly deported in the past. However, the apparent exactness of the case, as a Sixth Amendment decision, raises fundamental constitutional questions. For more than a …
Deportation And Justice: A Constitutional Dialogue, Daniel Kanstroom
Deportation And Justice: A Constitutional Dialogue, Daniel Kanstroom
Daniel Kanstroom
Recent statutory changes to United States immigration law have resulted in a large increase in the number, of lawful permanent resident noncitizens who are deported because of prior criminal conduct. Now, deportation is often a virtually automatic consequence of conviction for an increasingly minor array of crimes including possessory drug offenses and shoplifting. Under current statutory law, permanent resident noncitizens may be deported for crimes that were not grounds for deportation when they were committed and there may be no possibility of mercy or humanitarian relief. This Dialogue explores arguments for and against this system. Specifically, it examines the idea, …
Padilla V. Kentucky And The Evolving Right To Deportation Counsel: Watershed Or Work-In-Progress?, Daniel Kanstroom
Padilla V. Kentucky And The Evolving Right To Deportation Counsel: Watershed Or Work-In-Progress?, Daniel Kanstroom
Daniel Kanstroom
Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The …
Deportation, Social Control, And Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, Daniel Kanstroom
Deportation, Social Control, And Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, Daniel Kanstroom
Daniel Kanstroom
From the Author’s Introduction: We live in a time of unusual vigor, efficiency, and strictness in the deportation of long-term permanent resident aliens convicted of crimes. This situation is the result of some fifteen years of relatively sustained attention to this issue, which culminated in two exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In many cases, these laws have brought about a rather complete convergence between the criminal justice and deportation systems. Deportation is now often a virtually automatic consequence of criminal …
Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert
Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert
Lauren Gilbert
Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. …
Who Are Refugees?, Matthew Lister
Who Are Refugees?, Matthew Lister
Matthew J. Lister
Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the …
Immigration And Social Solidarity In A Time Of Crisis: The Welfare State And Integration, David Abraham
Immigration And Social Solidarity In A Time Of Crisis: The Welfare State And Integration, David Abraham
David Abraham
Very suddenly a cloud has settled over the immigration regimes of the European welfare states as well as the United States. Confidence in the ability to integrate and the value of integrating newcomers into a system of legal and social solidarity has waned. The weakening of both liberal civic nationalism and secular constitutional patriotism has unsettled national identities and undermined legal reforms intended to facilitate the inclusion of immigrants, especially Muslims. The road ahead will be very difficult for both the welfare state and immigrants. More forceful integration policies might be better for sustaining the welfare state, but individual liberties …
Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman
Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman
Eileen Kaufman
No abstract provided.
Hope In Procedure, Brian P. Matthews
Sexual Reorientation, Elizabeth M. Glazer
Sexual Reorientation, Elizabeth M. Glazer
Elizabeth M Glazer
There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of 7% of the population identifying as non-heterosexual, 40% of the men and a large majority of the women surveyed identified as bisexual. …
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decision Making?, Christine N. Cimini
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decision Making?, Christine N. Cimini
Christine N. Cimini
This article examines judicial decision making in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this article identifies a uniform judicial reliance upon “fault-based” factors. This article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decision making …
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decision Making?, Christine N. Cimini
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decision Making?, Christine N. Cimini
Christine N. Cimini
This article examines judicial decision making in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this article identifies a uniform judicial reliance upon “fault-based” factors. This article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decision making …
The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson
The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson
Jennifer L. Aronson
Law and literature comes in two forms: law as literature and law in literature, the latter referring to the exploration of legal issues in great literary texts. Law in literature scholars place a high value on the "independent" view of the literary writers as he or she sees the law. They believe that these authors have something to teach legal scholars and lawyers about the human condition. “The Trial” by Franz Kafka, concerns human beings caught up in social and political dilemmas. Kafka offers readers an insight to the nature of totalitarianism and forces us to ask hard questions about …
On The Precipice Of Uniformity And Decentralization: Immigration Enforcement Issues And The Skirmish Of United States V. Arizona., Brian R. Loss
On The Precipice Of Uniformity And Decentralization: Immigration Enforcement Issues And The Skirmish Of United States V. Arizona., Brian R. Loss
Brian R Loss
This note argues that the conflict preemption analysis of Section 2(b) (which codifies the mandatory police practices) is not an adequate barrier to prohibiting Arizona’s and similar discriminatory state police practices. The district court, when considering Section 2(b), applied a flawed preemption analysis, making it unclear how SB 1070 will fare in future decisions. The preemption holding in United States v. Arizona has a major flaw, which led to two failings in the analysis. This was the reading of the second sentence of Section 2(b) which was read against the entire policy of SB 1070, an anti illegal immigration bill …
Insecure Communities: Examining Local Government Participation In U.S. Immigration And Customs Enforcement’S “Secure Communities” Program, Rachel R. Ray
Rachel R Ray
Suffering global economies, war, ethnic and racial tensions, natural disasters, and other exigencies have led to a steady stream of immigrants to the United States. They seek jobs, refuge, asylum, and better opportunities. In fiscal year 2010, the United States Immigration and Customs Enforcement (“ICE”) removed a record-setting 392,000 undocumented immigrants, half of which were convicted criminals. Yet, a careful look behind this impressive number would undoubtedly reveal families torn apart by the removals of undocumented spouses, parents, siblings, and children convicted only of non-violent crimes, traffic violations, or other minor infractions. ICE’s own data shows that 79% of people …
Interpreting Judicial Interpretations Of The Criminal Statutes Of The Trafficking Victims Protection Act: Ten Years Later, Mohamed Mattar
Interpreting Judicial Interpretations Of The Criminal Statutes Of The Trafficking Victims Protection Act: Ten Years Later, Mohamed Mattar
Mohammad Mattar
The Trafficking Victims Protection Act (TVPA) established for the first time the crime of trafficking in persons. This article will analyze court cases that have been decided under the TVPA. The article will show that American courts, relying upon the text of the criminal statutes of the TVPA, as well as the findings of Congress, have broadened the interpretation of the offenses recognized under the Act to expand criminal liability, whether in cases of sex trafficking or labor trafficking. The article will also address cases in which the TVPA was challenged on constitutional grounds and whether it may apply on …
Terrorist Expatriation Act: Reformulating The Effort To Fight Citizen-Terrorists, Matthew Vesterdahl
Terrorist Expatriation Act: Reformulating The Effort To Fight Citizen-Terrorists, Matthew Vesterdahl
Matthew Vesterdahl
The United States government has the standing authority to take away a United States citizens’ citizenship for committing certain expatriating acts, codified in the Immigration and Nationality Act of 1952. The Terrorist Expatriation Act (TEA) is a piece of legislation that proposes adding the joining of a terrorist organization, or engaging in or supporting hostilities against the United States, as an expatriating act. However, this legislation echoes a previous attempt, Section 501 of the so-called Patriot Act II, a never actually proposed draft of legislation that would have added similar language to the Immigration and Nationality Act and its list …
A More Promising Promised Land: Israel Copes With An Influx Of Asylum Seekers By Implementing The 1951 Convention Relating To The Status Of Refugees And The 1967 Protocol, Aliyah M. Phillips
A More Promising Promised Land: Israel Copes With An Influx Of Asylum Seekers By Implementing The 1951 Convention Relating To The Status Of Refugees And The 1967 Protocol, Aliyah M. Phillips
Aliyah M Phillips
This Comment addresses the State of Israel’s most recent actions in coping with a mass influx of African asylum seekers, and whether those actions represent compliance with the 1951 Convention Relating to the Status of Refugees (“1951 Convention”), and the 1967 Protocol. Past scholarship has criticized Israel’s response to the influx, focusing on a lack of compliance. By examining Israel’s most recent practices with regard to asylum seekers, this Comment takes a novel and nuanced approach to identifying Israel’s compliance with the 1951 Convention. The argument set forth in this Comment operates from the presumption that a state’s compliance with …
A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw
Scott Titshaw
The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships. The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can …
Immigration Law Spanish- Style Ii: A Study Of Spain’S Voluntary Immigrant Return Plan And Circular Migration, Maria P. Lopez
Immigration Law Spanish- Style Ii: A Study Of Spain’S Voluntary Immigrant Return Plan And Circular Migration, Maria P. Lopez
Maria Pabon Lopez
In 2008, following the downturn in its economy, Spain undertook a bold experiment in circular migration, by enacting a voluntary repatriation plan Plan de Retorno Voluntario. This plan gave immigrant workers in the country who could not find employment in Spain the opportunity to return to their countries of origin and take with them their accrued unemployment benefits. After discussing the background and history of Spain’s immigration law, this article explores the current situation regarding immigrant workers in Spain, as well as the hardships faced by immigrants during the economic downturn. The article then examines the Plan de Retorno Voluntario …
As Dumb As We Wanna Be: U.S. H1-B Visa Policy And The "Brain Blocking" Of Asian Technology Professionals, Jeffrey L. Gower
As Dumb As We Wanna Be: U.S. H1-B Visa Policy And The "Brain Blocking" Of Asian Technology Professionals, Jeffrey L. Gower
Jeffrey L Gower
U.S. immigration policy created the H1-B visa program in 1990 for educated skilled foreign workers, and has manipulated the cap on several occasions. Limits were as high as 195,000 as recently as 2003, but was reduced to 65,000 by 2009. The result of the lowering of the H1-B visa cap placed a hardship both on domestic high-technology businesses, who could not get sufficient quantities of desired workers to fill employment slots, but to the country as well with reduced opportunities to recruit potential educated citizens and unintentionally produces a reduction of overall national brain gain effects that result from the …
"As Dumb As We Wanna Be: U.S. H-1b Visa Policy And The 'Brain Blocking' Of Asian Technology Professionals, Jeffrey L. Gower
"As Dumb As We Wanna Be: U.S. H-1b Visa Policy And The 'Brain Blocking' Of Asian Technology Professionals, Jeffrey L. Gower
Jeffrey L Gower
American technology firms must employ foreign specialty professionals through the H1-B system administered by the U.S. Immigration Service. Most applications for H1-B visas are from firms in the high technology sector, and the visas are granted through a lottery system. Chinese technology professionals are the second-highest recipients of these visas. The current total national H1-B visa allowance for 2008 and 2009 was capped at 65,000, with an additional 20,000 visas reserved for holders of Master's degrees or higher, down from 195,000 visas in the early 1990s. Computer software design firms and high technology application firms argue for an abolishment of …