{"title":"Detaining Families: A Study of Asylum Adjudication in Family Detention","authors":"Ingrid V. Eagly, Steven Shafer, J. Whalley","doi":"10.15779/Z38WH2DF26","DOIUrl":"https://doi.org/10.15779/Z38WH2DF26","url":null,"abstract":"The United States currently detains more families seeking asylum than any nation in the world, but little is known about how these families fare in the immigration court process. In this Article, we analyze government data from all immigration court cases initiated between 2001 and 2016 to provide the first empirical analysis of asylum adjudication in family detention. We find that families have been detained in remote locations, have faced language barriers in accessing the courts, and, despite valiant pro bono efforts to assist them, have routinely gone to court without legal representation. Only half of the family members who remained detained found counsel, fewer than 2% spoke English, and 93% had their hearings in detention adjudicated remotely over video conference, rather than in a traditional face-to-face courtroom setting. In addition, the evidence we uncover documents the important, and underappreciated, role that immigration courts have played in limiting the overdetention of migrant families by immigration authorities at the border. During the period studied, immigration judges reversed half of the negative credible fear decisions of asylum officers and systematically lowered the bond amount set by detention officers. We also find high compliance rates among family members who were released from detention: family members seeking asylum attended their immigration court hearings in 96% of cases since 2001. Finally, we document significant regional variation in case outcomes among family members who were released from detention, including whether family members obtained attorneys and won their asylum cases. These and other findings are meaningful to current policy debates regarding the role of immigration courts in maintaining due process in asylum proceedings and the appropriate use of detention to manage the migration of families fleeing violence in their home countries.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44117514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Nothing Less Than the Dignity of Man: Women Prisoners, Reproductive Health, and Unequal Access to Justice Under the Eighth Amendment","authors":"Estalyn Marquis","doi":"10.15779/Z38S46H59R","DOIUrl":"https://doi.org/10.15779/Z38S46H59R","url":null,"abstract":"Much of the literature on women prisoners’ inadequate access to healthcare has focused on the relative rarity of women in prison before the age of mass incarceration. This may explain why prisons initially were poorly equipped to provide healthcare to women, but the gendered nature of Eighth Amendment jurisprudence has allowed prisons to remain so. This Note argues the Supreme Court’s standard for prisoners’ claims of inadequate medical care under the Eighth Amendment denies women equal access to justice in the wake of inadequate reproductive healthcare. By implicitly requiring that women prisoners compare their medical needs to those of men, the current standard for evaluating prisoners’ claims of inadequate medical care, though gender-neutral on its face, creates barriers for women that do not exist for men. In the context of reproductive healthcare, this requirement presents an often-insurmountable obstacle for women prisoners seeking justice under the Eighth Amendment.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41531655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Aérospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes and What Foreign States Can Do About It","authors":"M. Hoda","doi":"10.15779/Z38BZ6181D","DOIUrl":"https://doi.org/10.15779/Z38BZ6181D","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42559399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Remedial Convergence and Collapse","authors":"Leah M. Litman","doi":"10.15779/Z382V2C96D","DOIUrl":"https://doi.org/10.15779/Z382V2C96D","url":null,"abstract":"This Article describes and interrogates a phenomena of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43162137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Trade and the Separation of Powers","authors":"Timothy Meyer, Ganesh Sitaraman","doi":"10.2139/SSRN.3136086","DOIUrl":"https://doi.org/10.2139/SSRN.3136086","url":null,"abstract":"There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic economics paradigm dominated in the nineteenth century, and the foreign affairs paradigm from the mid-twentieth century. \u0000Since the end of the Cold War, however, trade law and policy has become increasingly divisive and contentious. Trade law and policy entered a new era of liberalization, characterized by international organizations (like the WTO) and a shift to mini-lateral free trade agreements. By 2016, backlash was in full force, with candidates Donald Trump, Bernie Sanders, and Hillary Clinton all coming out against the Trans-Pacific Partnership (TPP). Since taking office, President Trump has instituted high tariffs on solar panels, threatened to withdraw from NAFTA, and sparked concern about a trade war with China. \u0000This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. We provide a thorough descriptive account of the two paradigms for trade within our constitutional system and show that trade has migrated from a domestic to a foreign affairs matter – and ultimately that it has becoming unhooked even from specific foreign affairs objectives. As trade drifted further away from the balance struck by our separation of powers and became increasingly rooted in the Presidency, agreements liberalizing trade rules became more viable – but at the cost of the political sustainability that comes with greater congressional involvement. \u0000Second, we make a normative case for rebalancing trade within the constitutional structure. We argue that trade shares few similarities with other foreign affairs and national security areas in which the President is seen to have a functional advantage, and perhaps surprisingly given the conventional wisdom, that the parochial interests of Congress present strong benefits to trade policymaking that are widely undervalued. \u0000Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast track authority in negotiating and approving trade agreements, the President’s power to declare trade wars, the scope of the President’s authority to withdraw from trade agreements, the use of unorthodox internatio","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3136086","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44398360","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The New World of Agency Adjudication","authors":"Christopher J. Walker, Melissa Wasserman","doi":"10.2139/SSRN.3129560","DOIUrl":"https://doi.org/10.2139/SSRN.3129560","url":null,"abstract":"In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. \u0000 \u0000In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. \u0000 \u0000This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47578673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Wrong Turn on the Ex Post Facto Clause","authors":"Paul D. Reingold, Kimberly A. Thomas","doi":"10.2139/SSRN.3126467","DOIUrl":"https://doi.org/10.2139/SSRN.3126467","url":null,"abstract":"The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause. Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken. \u0000Parole is an integral part of punishment: it determines how much time people will serve on their sentences. Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners. If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only. Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees. Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences. \u0000In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause. In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41901284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Is Qualified Immunity Unlawful","authors":"William Baude","doi":"10.2139/SSRN.2896508","DOIUrl":"https://doi.org/10.2139/SSRN.2896508","url":null,"abstract":"The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity. But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45063563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"#IU: Considering the Context of Online Threats","authors":"L. Lidsky, Linda Riedemann Norbut","doi":"10.15779/Z38JM23G4C","DOIUrl":"https://doi.org/10.15779/Z38JM23G4C","url":null,"abstract":"The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This Article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having their opinions misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often avoiding the anxiety and expense of trial. This Article contends that criminal defendants in threats cases should have a similar defense that permits them to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pretrial hearing. In cases that cannot be resolved before trial, the context defense would entitle a defendant to produce contextual evidence at trial and have the jury instructed regarding the role of context in separating threats from protected speech. Although adoption of the context defense would be especially helpful in correctly resolving social media cases, its use in all threats cases would provide an important safeguard against erroneous convictions of speech protected by the First Amendment.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42531916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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