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We the People

Response

Madison’s Waiver

Can Constitutional Liquidation Be Liquidated?
by  David S. Schwartz  

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)

Clarence_Thomas_official_SCOTUS_portrait

Essay

What Justice Thomas Gets Right About Batson

by  Thomas Ward Frampton  

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)

The Amazon World Headquarters Campus Spheres USA

Essay

Short-Termism and Antitrust’s Innovation Paradox

by  Joshua P. Zoffer  

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)

File Folders of Taxes

Essay

Hyperlocal Responses to the SALT Deduction Limitation

by  Manoj Viswanathan  

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)

An empty fenced prison yard with prison behind

Symposium - 2019 - Immigration

Privatized Detention & Immigration Federalism

by  David S. Rubenstein & Pratheepan Gulasekaram  

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)

Immigrant visa

Symposium - 2019 - Immigration

Crediting Migrants

by  Shayak Sarkar  

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  

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)

White Lives Matter Rally, Austin, Tx, Nov. 19, 2016

Symposium - 2019 - Immigration

White Nationalism as Immigration Policy

by  Jayashri Srikantiah & Shirin Sinnar*  

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)

Syrian children hugging in the camp

Symposium - 2019 - Immigration

Refugee Litigation in the Trump Era: Protecting Overseas Humanitarian Migrants in U.S. Courts

by  Mariko Hirose  

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)

editorial photograph: up close arrest of homeless woman

Symposium - 2019 - Immigration

Crimmigration Beyond the Headlines: The Board of Immigration Appeals’ Quiet Expansion of the Meaning of Moral Turpitude

by  Jennifer Lee Koh  

“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)

Protest Sign Outside the Arrivals Terminal at San Francisco International Airport

Symposium - 2019 - Immigration

The Ban and the Borderlands Within: The Travel Ban as a Domestic War on Terror Tool

by  Khaled A. Beydoun  

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)

Book with title administrative law on a table.

Essay

May Chevron Be Waived?

by  James Durling & E. Garrett West  

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)

Business graph with arrows tending downwards

Essay

The Last SIFI: The Unwise and Illegal Deregulation of Prudential Financial

by  Jeremy C. Kress*  

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)

People waiting in queue at arrival immigration of Changi airport

Essay

The Labor Economics Case for the Diversity Visa Lottery

by  Patrick Kennedy  

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)

The Freedom of Information Act (FOIA) written on a page.

Essay

Deference Conservation—FOIA’s Lessons for a Chevron-less World

by  John C. Brinkerhoff Jr. & Daniel B. Listwa  

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)

Official Photograph of Justice Anthony Kennedy

Tribute

Civility, Dignity, Respect, and Virtue

by  Gary Feinerman  

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)

retirement benefits

Essay

Postmortem Austerity and Entitlement Reform

by  Reid Kress Weisbord  

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)

School kids running in elementary school hallway, back view

Essay

The Compromised Right to Education?

by  Joshua E. Weishart  

Introduction Indiana Jones's quest to discover the holy grail in The Last Crusade leads him to a hidden grotto lined with chalices, a Nazi, and a medieval knight. The Nazi sips from an ornate, gold chalice accented with jewels, convinced he has chosen the true grail. He is mistaken and pays for it with his…

Volume 71 (2018-2019)

Sexual Harassment Complaint Form

Symposium - 2018 - #MeToo

Ending Harassment by Starting with Retaliation

by  Nicole Buonocore Porter*  

Introduction The #MeToo movement has had a transformative effect on the discussion surrounding harassment in the workplace. As more women came forward to tell their stories of harassment, often against high-profile entertainment moguls or politicians, the public story that emerged was one of surprise and anger. But perhaps more importantly, the stories inspired hope that…

Volume 71 (2018-2019)

Female boss shows presentation on screen at business meeting

Symposium - 2018 - #MeToo

Beyond the Rhetoric: What It Means to Lead in a Diverse and Unequal World

by  Rebecca K. Lee*  

Introduction As the #MeToo movement has gained momentum, industry and company leaders have been placed in the hot seat regarding how they are addressing (or not) the incidents of sex harassment in their organizations. Despite their stance and pronouncements against harassment and discrimination, leaders may not notice problems early on, or they may discount concerns…

Volume 71 (2018-2019)