Law Commons^™

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Improving Agencies’ Preemption Expertise With Chevmore Codification, Kent H. Barnett

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After nearly thirty years, the judicially crafted Chevron and Skidmore judicial-review doctrines have found new life as exotic, yet familiar, legislative tools. When Chevron deference applies, courts employ two steps: they consider whether the statutory provision at issue is ambiguous, and, if so, they defer to an administering agency’s reasonable interpretation. Skidmore deference, in contrast, is a less deferential regime in which courts assume interpretative primacy over statutory ambiguities but defer to agency action based on four factors — the agency’s thoroughness, reasoning, consistency, and overall persuasiveness. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directed courts …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Regulation By Hypothetical, Mehrsa Baradaran

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A new paradigm is afoot in banking regulation—and it involves a turn toward the more speculative. Previous regulatory instruments have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management oversight to ensure the safety of the banking system. This Article describes and contextualizes these regulatory tools and shows how and why they were formed to deal with industry change. The financial crisis of 2008 exposed the shortcomings in each of these regimes. In important ways, the Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) departs from these past regimes and proposes something new: Call it …

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael Wells

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A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

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I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

The Commerce Power And Congressional Mandates, Dan T. Coenen

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In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to spark challenges to other federal laws on the theory that they likewise mandate individuals or entities to take certain actions. Federal laws founded on the commerce power, for example, require mine operators to provide workers with safety helmets and (at least as a practical matter) require mine workers to wear them. Some analysts will say that laws …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2013, the United States Court of Appeals for the Eleventh Circuit rejected a challenge to the Navy's Undersea Warfare Training Range (Range) off the coast of Jacksonville, Florida, based on potential impacts the Range could have to the endangered North Atlantic Right Whale and other endangered species. The court held that the Navy and the National Marine Fisheries Service (NMFS) had met their obligations under the National Environmental Policy Act of 1969 (NEPA as amended and the Endangered Species Act of 1973 (ESA as amended thus far in the project.' The court also decided two cases under the Clean …

An Originalist Argument For A Sixth Amendment Right To Competent Counsel, Erica J. Hashimoto

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The Treason Act of 1696 provided a right to counsel in treason cases in England and laid the framework for the right to counsel both in England and in the United States. Evidence suggests that the Treason Act may have influenced the Framers of the Constitution; thus, any historical understanding of the Sixth Amendment right to counsel should consider the quality of representation treason defendants received. If, as appears to be the case, treason defendants had competent, experienced lawyers representing them, then the Sixth Amendment right to counsel may well include that right to such representation. This Essay suggest that …

Press Exceptionalism, Sonja R. West

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Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows us to act in ways that often seem “press-like.” We might, for example, tweet a warning to our friends about a traffic jam or blog about an upcoming election. Armed with nothing more than a smart phone or a laptop, each of us can share information about matters of public interest to a potentially broad audience in a timely manner — thus engaging in the very activities that were once considered the exclusive …

The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.

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A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction …

Overcoming Barriers To The Protection Of Viable Fetuses, Randy Beck

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I start this Article from the premise that the Court was correct in Roe v. Wade concerning the significance of fetal viability. I assume for the sake of argument that viability is a momentous point in pregnancy and that “logical and biological justifications” support a compelling state interest in protecting the lives of fetuses that have crossed the viability threshold. The goal of this Article is to highlight factors that individually and in concert significantly hinder legislative attempts to preserve the lives of viable fetuses, and to identify measures that, if permitted by the courts, could facilitate the pursuit of …

Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson

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When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.

Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes …

The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen

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The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a …

Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr.

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English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during …

Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer

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This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary to …

The Empty Promise Of Vara: The Restrictive Application Of A Narrow Statute, David E. Shipley

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The Visual Artists Rights Act (VARA) was enacted by Congress in 1990 in order to bring our laws into compliance with Article 6bis of the Berne Convention and to acknowledge that protecting moral rights will foster “a climate of artistic worth and honor that encourages the author in the arduous act of creation.” The passage of this legislation is said to show Congress’s “belief that the art covered by the Act ‘meet[s] a special societal need, and [its] protection and preservation serves an important public interest.’”

Notwithstanding these lofty statements about artistic worth, honor and encouraging creation, VARA is a …

The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond

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In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

The Return Of Constitutional Federalism, Logan E. Sawyer Iii

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This article comments on National League of Cities v. Usery, 426 U.S. 833 (1976) and the role played by Justice Lewis F. Powell, Jr. It argues that the decision did not constitute any “return” to “constitutional federalism” and that, despite claims to the contrary, its inspiration came from the political goals of the Court’s conservative Justices. More specifically it argues that Justice Powell’s role was not influenced simply by contemporary critiques that undermined the “political safeguards of federalism” theory but, rather, that Justice Powell’s political views likely shaped both his understanding of the “political safeguards” thesis and his rejection of …

The Prudential Third Party Standing Of Family-Owned Corporations, Matthew I. Hall, Benjamin Means

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On November 26, 2013, the Supreme Court agreed to decide whether for-profit corporations or their shareholders have standing to challenge federal regulations that implement the Patient Protection and Affordable Care Act (ACA). At issue in the two cases consolidated for appeal, Hobby Lobby and Conestoga Wood Specialties, are regulations mandating that employers with fifty or more employees offer health insurance that includes coverage for all contraceptives approved by the Food and Drug Administration (FDA). The plaintiffs assert that providing certain types of contraceptive care would be contrary to their religious beliefs and allege, therefore, that the mandate violates the Religious …

The Great Writ In The Peach State: Georgia Habeas Corpus, 1865-1965, Donald E. Wilkes Jr.

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There is a plenitude of scholarly writing on the Great Writ of Habeas Corpus, which is universally recognized as "one of the decisively differentiating factors between our democracy and totalitarian governments."' The overwhelming majority of these scholarly publications are concerned with the writ of habeas corpus as administered in the federal court system. There are far fewer scholarly publications on the writ of habeas corpus as administered in the courts of the State of Georgia, and most of these works are concerned with Georgia habeas corpus as a state postconviction remedy, past and present. Only one scholarly piece, a law …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

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We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

International Law And The Future Of Peace, Diane Marie Amann

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These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

Corporate Governance Theory And Review Of Board Decisions, Christopher M. Bruner

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No abstract provided.

To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett

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The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

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Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …

Disaggregative Mechanisms: The New Frontier Of Mass-Claims Resolution Without Class Actions, Jaime Dodge

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Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of …

Banking And The Social Contract, Mehrsa Baradaran

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This article asserts that there exists today and has always existed an interdependent relationship between banks and the state. I refer to this connection and its mutual benefits and responsibilities as a social contract. When Alexander Hamilton responded to President Washington’s inquiry about the advisability of a national bank, he wrote that “such a Bank is not a mere matter of private property, but a political machine of the greatest importance to the State.” This social contract has existed since the inception of banking in the United States and has been reinforced over time, but it has recently become weakened …