Response The Struggle Against Empire Continues Reflections on Migration as Decolonization by Chantal Thomas on January 10, 2020 Migration as Decolonization telegraphs the essence of a postcolonial approach to the assertion of sovereign territorial exclusion. Tendayi Achiume’s concept of “de-imperial migration” clarifies and enhances a set of important critiques and should justly impact not just legal scholarship but also broader public discourse. This Response brings out two of the concepts in Migration as Decolonization and relates them to Professor Thomas' earlier discussions of “interconnectedness” between migration-sending and migration-receiving territories. Volume 72 (2019-2020)
2019 Student Essay Competition Winner Influencing the Future Compensating Children in the Age of Social-Media Influencer Marketing by Erin E. O'Neill on December 30, 2019 In the age of smartphones, parents frequently take photos and videos of their children—even mundane moments are easy to share with friends and family. But what happens when these photos and videos are made public for any social-media user to see? This Essay proposes ways in which states can regulate online child-centric content by mom-influencers. Volume 72 (2019-2020)
2019 Student Essay Competition Winner Game Changer Why and How Congress Should Preempt State Student-Athlete Compensation Regimes by Justin W. Aimonetti & Christian Talley on December 30, 2019 In September 2019, California enacted the Fair Pay to Play Act, a groundbreaking piece of legislation that allows college athletes to profit off their name, image, and likeness. This Essay contends that congressional legislation should expressly preempt competing state regulations, thus restoring national uniformity in college sports. An express preemption provision would both avoid judicial uncertainty about the law’s preemptive scope and ensure a level playing field. Volume 72 (2019-2020)
Response Madison’s Waiver Can Constitutional Liquidation Be Liquidated? by David S. Schwartz on September 14, 2019 Professor William Baude’s recent article Constitutional Liquidation outlines such a theory, by which indeterminate constitutional meaning can be “liquidated”—clarified and settled—through a “course of deliberate practice” by non-judicial public officials. Baude’s article makes a good start but leaves certain critical questions unaddressed. If Baude develops his theory further, he will have to analyze numerous examples of non-judicial precedent to define the contours and limits of liquidation. Volume 72 (2019-2020)
Essay What Justice Thomas Gets Right About Batson by Thomas Ward Frampton on September 1, 2019 In Flowers v. Mississippi, the Supreme Court vacated the capital conviction of Curtis Flowers; prosecutor Doug Evans was “motivated in substantial part by discriminatory intent” when he used a peremptory strike to exclude a black potential juror, the Court held, violating a prohibition against such conduct first announced in Batson v. Kentucky. Justice Thomas penned a lengthy dissent that has been met with disdain in the popular press. But Justice Thomas’s dissent also gets right many things about the Batson doctrine and race in the courtroom that the Court’s liberal wing has proven loath to confront. Volume 72 (2019-2020)
Essay Short-Termism and Antitrust’s Innovation Paradox by Joshua P. Zoffer on May 23, 2019 Antitrust law has long struggled to account for the role of innovation in economic production. Dynamic factors like capital stock, investment spending, and productivity growth do not lend themselves to neat doctrinal rules or clear regulatory mandates. And the antitrust literature has long treated “innovation” as either the domain of intellectual property law or a black-box variable, rather than the product of specific intracompany organizational and investment decisions. Volume 71 (2018-2019)
Essay Hyperlocal Responses to the SALT Deduction Limitation by Manoj Viswanathan on April 12, 2019 The Tax Cuts and Jobs Act places a $10,000 limit on the federal deduction for state and local taxes (SALT). Much has been said about state-level responses to this cap, but there has been little analysis of local-level effects or how local governments could similarly respond. This Essay addresses that gap by (1) statistically modeling the number of taxpayers affected by the SALT deduction cap at a ZIP-code level, and (2) proposing locality-based strategies relevant to taxpayers throughout the U.S., not just those living in highly affected states. Volume 71 (2018-2019)
Symposium - 2019 - Immigration Privatized Detention & Immigration Federalism by David S. Rubenstein & Pratheepan Gulasekaram on March 11, 2019 The vast majority of detained immigrants are held in facilities operated by private corporations. Over the past decade, academics and dedicated advocates have shed critical light on the structural causes and effects of privatized immigration detention, offering a range of policy prescriptions along the way. Until now, however, federalism has been a virtual blind spot in that reformist agenda. Intervening, this Essay draws federalism into the spotlight. Volume 71 (2018-2019)
Symposium - 2019 - Immigration Crediting Migrants by Shayak Sarkar on March 11, 2019 Credit facilitates migration, and it may also provide a theoretical framework to understand it. This Essay examines the role of credit and financing in migration by focusing on changes to the “public charge” ground of inadmissibility—American immigration law’s nearly 150-year-old test for prohibiting migration by those financially dependent on governmental assistance. Volume 71 (2018-2019)
Symposium - 2019 - Immigration Detention as Deterrence by Emily Ryo on March 11, 2019 Does immigration detention deter unauthorized migration? The federal government has argued that “one particular individual may be civilly detained for the sake of sending a message” to others “who may be considering immigration.” Emerging empirical research, however, provides little to no evidence that detention has had the type and level of deterrent effect desired by the federal government. Why might this be so? This Essay addresses this question by examining three key “deterrence hurdles” that present challenges to detention as deterrence. Volume 71 (2018-2019)
Symposium - 2019 - Immigration White Nationalism as Immigration Policy by Jayashri Srikantiah & Shirin Sinnar* on March 11, 2019 This Essay argues that legal challenges to Trump’s restrictive immigration policies should call out white nationalism as the underlying harm, both through raising equal protection claims and in presenting the overall theory of the case. Asserting these claims can frame public and political understanding of the issues at stake, support social movements challenging racialized immigration enforcement, and offer an alternative vision for immigration law that rejects both racial criteria and exceptional judicial deference. Volume 71 (2018-2019)
Symposium - 2019 - Immigration Refugee Litigation in the Trump Era: Protecting Overseas Humanitarian Migrants in U.S. Courts by Mariko Hirose on March 11, 2019 This Essay describes the paths available in U.S. courts for enforcing the rights of overseas humanitarian migrants, drawing on lessons learned from four cases filed by the International Refugee Assistance Project. It disentangles the confusion that often exists when analyzing standing, reviewability, and claims available to foreign nationals abroad. By examining these issues separately, it becomes clear that, despite the plenary power doctrine, U.S. courts have an important role to play in protecting overseas humanitarian migrants. Volume 71 (2018-2019)
Symposium - 2019 - Immigration Crimmigration Beyond the Headlines: The Board of Immigration Appeals’ Quiet Expansion of the Meaning of Moral Turpitude by Jennifer Lee Koh on March 11, 2019 “Crimes involving moral turpitude” (CIMTs) comprise one category of criminal convictions can lead to deportation, detention, and disqualification from immigration relief. Courts have looked to the Board of Immigration Appeals (BIA) to define the scope of moral turpitude. However, a series of recent BIA decisions suggests that the Board has expanded the definition of moral turpitude in ways that defy common sense and undermine the prevailing methodology for assessing the immigration consequences of crime. Volume 71 (2018-2019)
Symposium - 2019 - Immigration The Ban and the Borderlands Within: The Travel Ban as a Domestic War on Terror Tool by Khaled A. Beydoun on March 11, 2019 The scholarly and popular focus has focused on the Muslim Ban’s impact on Muslim immigrants attempting to come into the U.S., while neglecting how the Ban imperils immigrants, lawful permanent residents, and citizens from the restricted states inside the country, namely, Muslim American communities—the heavily policed borderlands within. This Essay seeks to address this scholarly and discursive void, and, at minimum, commence scholarly investigation into the Travel Ban’s impact beyond the border. Volume 71 (2018-2019)
Essay May Chevron Be Waived? by James Durling & E. Garrett West on January 22, 2019 Suppose that a private party sues an agency, arguing that the agency’s regulation exceeds its statutory authority. Normally, a court would review the party’s challenge under the well-known Chevron doctrine, which directs judges to defer to reasonable agency interpretations of ambiguous statutory texts. But what happens if either the private party or the agency doesn’t make an argument under Chevron? Perhaps the agency doesn’t defend its action by invoking deference, or perhaps the private party doesn’t challenge that Chevron should apply. Volume 71 (2018-2019)
Essay The Last SIFI: The Unwise and Illegal Deregulation of Prudential Financial by Jeremy C. Kress* on December 17, 2018 On October 16, federal regulators released Prudential Financial from enhanced government oversight. This Essay contends that in removing Prudential’s “systemically important” label, regulators (1) violated their established procedural rules, (2) relied on misleading quantitative analyses, and (3) failed to consider a mandatory statutory factor. This Essay thus urges litigation and Congressional oversight challenging the rescission of Prudential’s “systemically important” status. Volume 71 (2018-2019)
Essay The Labor Economics Case for the Diversity Visa Lottery by Patrick Kennedy on October 9, 2018 Authors writing in many political publications have spilled ink describing the diplomatic benefits and positive self-selection spurred by immigration programs like the diversity lottery (DV). This essay argues that there is a more fundamental economic case for keeping the DV lottery: Immigrants move to where other immigrants live, so establishing a mechanism to encourage immigration from countries with few immigrants is critical. Without the DV program, America will lose an important advantage in the global war for talent over the long run. Volume 71 (2018-2019)
Essay Deference Conservation—FOIA’s Lessons for a Chevron-less World by John C. Brinkerhoff Jr. & Daniel B. Listwa on August 30, 2018 Introduction In SAS Institute Inc. v. Iancu, the Supreme Court entered the next chapter in the long-winding debate over Chevron deference, which instructs courts to defer to an agency’s reasonable interpretation of its substantive statutes. Writing for a five-member majority, Justice Gorsuch refused to affirm the doctrine, noting portentously that “whether Chevron should remain is a… Volume 71 (2018-2019)
Tribute Civility, Dignity, Respect, and Virtue by Gary Feinerman on August 16, 2018 Just over a decade ago, in his characteristically eloquent remarks at a clerk reunion in the Great Hall of the Supreme Court, Justice Kennedy reflected on the phrase “pursuit of Happiness” in the Declaration of Independence. The Justice observed that Thomas Jefferson did not have in mind the phrase’s modern, colloquial meaning—the ephemeral happiness that… Volume 71 (2018-2019)
Essay Postmortem Austerity and Entitlement Reform by Reid Kress Weisbord on July 16, 2018 Abstract. This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that,… Volume 71 (2018-2019)