Nicole Hallett RETHINKING PROSECUTORIAL DISCRETION IN IMMIGRATION ENFORCEMENT 42 Cardozo Law Review 1765 (September, 2021) Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama's immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante,... 2021
  RIGHT TO A JURY TRIAL 50 Georgetown Law Journal Annual Review of Criminal Procedure 651 (2021) Under the Sixth Amendment, criminal defendants have a right to trial by an impartial jury drawn from the state and district where the crime allegedly occurred. The right to a jury trial exists only in prosecutions for serious crimes, as distinguished from petty offenses. In determining whether a crime is serious under the Sixth Amendment, courts... 2021
Yara M. Wahba RISK ASSESSMENTS ARE THE DIAGNOSIS NOT THE CURE: HOW USING ALGORITHMS AS DIAGNOSTIC TOOLS CAN PREVENT THE BAIT-AND-SWITCH OF UNCONSTITUTIONAL PRETRIAL PRACTICES 24 Chapman Law Review 575 (Winter, 2021) In our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception. While the Supreme Court has emphasized the exceptional nature of infringements on any individual's liberty, the reality of our criminal justice system contradicts this sentiment. Marginalized people, whether because of race or... 2021
Emily Prifogle RURAL SOCIAL SAFETY NETS FOR MIGRANT FARMWORKERS IN MICHIGAN, 1942-1971 46 Law and Social Inquiry 1022 (November, 2021) In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers' private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid... 2021
Mark R. Killenbeck SOBER SECOND THOUGHT? KOREMATSU RECONSIDERED 74 Arkansas Law Review 151 (2021) How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer's caution about decisions that have harm[ed] not just the Court, but the Nation. Part of an Anticanon, resting on little more than naked racism and associated hokum and... 2021
Tally Kritzman-Amir SWAB BEFORE YOU ENTER: DNA COLLECTION AND IMMIGRATION CONTROL 56 Harvard Civil Rights-Civil Liberties Law Review 77 (Winter, 2021) In the spring of 2019, the United States Department of Homeland Security (DHS) announced that it would start conducting DNA tests at the border to identify fraudulent claims regarding family ties. Later, in January 2020, DHS started to collect DNA samples from persons in immigration detention. This article examines these measures in their... 2021
Ruqaiijah Yearby , Seema Mohapatra SYSTEMIC RACISM, THE GOVERNMENT'S PANDEMIC RESPONSE, AND RACIAL INEQUITIES IN COVID-19 70 Emory Law Journal 1419 (2021) During the COVID-19 pandemic, federal and state governments have disregarded racial and ethnic minorities' unequal access to employment and health care, which has resulted in racial inequities in infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are... 2021
Mary Holper TAKING LIBERTY DECISIONS AWAY FROM "IMITATION" JUDGES 80 Maryland Law Review 1076 (2021) I think that condemning people to jail is a job for the judiciary in accordance with procedural due process of law. To farm out this responsibility to the police and prosecuting attorneys is a judicial abdication in which I will have no part. I. The Lack of an Independent Immigration Judge. 1081 A. The Historically Commingled Functions and War... 2021
Shayak Sarkar TAX LAW'S MIGRATION 62 Boston College Law Review 2209 (October, 2021) Introduction. 2210 I. Historic Taxation to Shape Migration and Migrants. 2216 A. Colonies of Migrant Taxation. 2217 B. Taxation and Migration Beyond the Colonies. 2219 C. Modern Migration and the Public Fisc. 2223 II. Contemporary Instances of Tax Law's Migration. 2227 A. Pandemic Relief. 2227 1. Round One of Pandemic Relief and Constitutional... 2021
Mekonnen Firew Ayano TENANTS WITHOUT RIGHTS: SITUATING THE EXPERIENCES OF NEW IMMIGRANTS IN THE U.S. LOW-INCOME HOUSING MARKET 28 Georgetown Journal on Poverty Law and Policy 159 (Winter, 2021) Immigrants who recently arrived in the United States generally are not able to exclusively possess rental properties in the formal market because they lack a steady source of income and credit history. Instead, they rent shared bedrooms, basements, attics, garages, and illegally converted units that violate housing codes and regulations. Their... 2021
Faiza W. Sayed TERRORISM AND THE INHERENT RIGHT TO SELF-DEFENSE IN IMMIGRATION LAW 109 California Law Review 615 (April, 2021) The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity. Both engaged in terrorist activity and terrorist activity are terms of art that are broadly defined under the INA to include activity that courts, scholars, and advocates agree stretches the definition of... 2021
J. Shoshanna Ehrlich THE BODY AS BORDERLAND: THE ABORTION (NON)RIGHTS OF UNACCOMPANIED TEENS IN FEDERAL IMMIGRATION CUSTODY IN THE TRUMP-PENCE ERA 28 UCLA Women's Law Journal 47 (Summer, 2021) In 2017, Scott Lloyd, the newly appointed director of the Office of Refugee Resettlement (ORR) declared that henceforth pregnant teens in federal immigration custody could not obtain an abortion without his express consent. This quickly proved to be an impossibility on account of Lloyd's deeply held and religiously saturated antiabortion beliefs.... 2021
Shelley Welton THE BOUNDS OF ENERGY LAW 62 Boston College Law Review 2339 (October, 2021) Introduction. 2341 I. A Materialist Account of the Field and Its Failings. 2347 A. New Energy Sources and Uses Emerge: 1850-1930. 2348 B. New Deal Legal Gap-Filling and the Mid-Century Détente: 1930-1970. 2353 C. The (Partial) Collapse of the Consensus: 1970-2000. 2357 D. 1990s--2020: Energy Law Meets Climate Change, First Generation. 2361 II. The... 2021
Shoba Sivaprasad Wadhia, Christopher J. Walker THE CASE AGAINST CHEVRON DEFERENCE IN IMMIGRATION ADJUDICATION 70 Duke Law Journal 1197 (February, 2021) The Duke Law Journal's fifty-first annual administrative law symposium examines the future of Chevron deference--the command that a reviewing court defer to an agency's reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should... 2021
Suja A. Thomas THE CUSTOMER CASTE: LAWFUL DISCRIMINATION BY PUBLIC BUSINESSES 109 California Law Review 141 (February, 2021) It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms based on their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect Black and other people of color from discrimination and segregation in... 2021
Eddie Bernice Johnson , Lawrence J. Trautman THE DEMOGRAPHICS OF DEATH: AN EARLY LOOK AT COVID-19, CULTURAL AND RACIAL BIAS IN AMERICA 48 Hastings Constitutional Law Quarterly 357 (Spring, 2021) During late 2019, reports emerged that a mysterious coronavirus was resulting in high contagion and many deaths in Wuhan, China. In just a few weeks, cases rose quickly in Seattle, spread to California, and the first instance of the virus appeared in New York (from Iran) on March 1, 2020. As the months pass, it is abundantly clear that less wealthy... 2021
Shalini Bhargava Ray THE EMERGING LESSONS OF TRUMP v. HAWAII 29 William & Mary Bill of Rights Journal 775 (March, 2021) In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component... 2021
Eunice Lee THE END OF ENTRY FICTION 99 North Carolina Law Review 565 (March, 2021) Although entry fiction emerged in immigration and constitutional law over a century ago, the doctrine has yet to account for present-day carceral and technological realities. Under entry fiction, arriving immigrants stopped at the border are deemed unentered and not here for constitutional due process purposes, even in detention centers... 2021
Deborah M. Weissman , Angelina Godoy , Havan M. Clark THE FINAL ACT: DEPORTATION BY ICE AIR 49 Hofstra Law Review 437 (Winter, 2021) Immigration enforcement has long served as an indicator of the prevailing visceral fears and loathing toward the Other. The foreign is always suspect. Foreigners in great numbers are especially suspicious. These developments are historically tied to the conventions of colonialism, expanded as a function of foreign policy, and to be sure, ideology.... 2021
Tabatha L. Castro, Esq. THE FORGOTTEN PEOPLE 39-WTR Delaware Lawyer 14 (Winter, 2021) How COVID-19 has affected the immigrant community Immigrants in Delaware make up a robust community filled with culture and diversity that makes the First State a unique place to call home. Immigrants work hard daily to support their families in Delaware and even in their native countries, by sending financial assistance to their loved ones.... 2021
Ruben J. Garcia THE HUMAN RIGHT TO WORKPLACE SAFETY IN A PANDEMIC 64 Washington University Journal of Law & Policy 113 (2021) The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia... 2021
Julia Vázquez THE IMPACTED IMMIGRATION LAWYER IN THE ERA OF TRUMP: EMPATHY, WELLBEING, AND SUSTAINABLE LAWYERING 50 Southwestern Law Review 275 (2021) Caldwell's Deported Americans invites the reader to enter a world of empathy for immigrants and their families. Her recommendations for more just judicial and legislative reforms stand in dark contrast to the reality in which immigrants find themselves today and the reality in which immigration lawyers now practice. Yet in the midst of this new era... 2021
Mambwe Mutanuka THE INTERSECTION OF HEALTH POLICY AND IMMIGRATION: CONSEQUENCES OF IMMIGRANTS' FEAR OF ARRESTS IN U.S. HOSPITALS 30 Annals of Health Law Advance Directive 217 (Spring, 2021) Immigrants comprise of almost fourteen percent of the total U.S. population. Despite being legally eligible to apply for numerous health-related services, many immigrants do not pursue conventional health care services. Language, literacy, stigma, and fear of deportation, are contributing factors that deter immigrants from enrolling in these... 2021
Allen Slater , Richard Delgado THE LEAST OF THESE: THE CASE FOR NATIONWIDE INJUNCTIONS IN IMMIGRATION CASES AS A CRITICAL DEMOCRATIC INSTITUTION 25 U.C. Davis Social Justice Law Review 100 (Summer, 2021) Truly I tell you, whatever you did not do for one of the least of these, you did not do for me. --Matthew 25:45 America is fortunate to have a long running and relatively stable democratic government, due in large part to the robustness of many of its democratic institutions. Analogically, one can describe democratic institutions as some of the... 2021
Eliza Sweren-Becker, Michael Waldman THE MEANING, HISTORY, AND IMPORTANCE OF THE ELECTIONS CLAUSE 96 Washington Law Review 997 (October, 2021) Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause's original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress... 2021
David E. Bernstein THE MODERN AMERICAN LAW OF RACE 94 Southern California Law Review 171 (January, 2021) C1-2TABLE OF CONTENTS INTRODUCTION. 172 I. THE MODERN HISTORY OF FEDERAL RACIAL AND ETHNIC CATEGORIES. 187 A. Pre-1964: Official Minority Categories Emerge. 187 B. The 1964 Civil Rights Act and its Aftermath. 190 C. The Nixon Administration: The Philadelphia Plan, the Small Business Administration, the Interagency Commission, and the Origins of the... 2021
Michael S. Avi-Yonah THE NATION-STATE THAT NEVER SETS: HONG KONG, DEGLOBALIZATION, AND THE ENDURANCE OF NATION-STATES IN PROTECTING RIGHTS 46 Yale Journal of International Law 325 (Summer, 2021) Introduction. 325 I. Nationality, the State, and the Individual. 331 II. The Detritus of Empire Reaches Hong Kong. 332 III. Exposing the Gaps: The Failure of Splitting the Difference. 336 A. BN(O) and the Perils of Repatriation. 338 B. Ethnic Minorities Exposing the Gap. 344 IV. Bilateral Relations: A Path Foward. 352 A. The Limits of... 2021
Robert L. Tsai THE PLACE OF THE PRESIDENCY IN HISTORICAL TIME 101 Boston University Law Review 1831 (October, 2021) This Essay arises from a symposium based on Jack Balkin's book, The Cycles of Constitutional Time, which argues that America's constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is... 2021
Ming Hsu Chen THE POLITICAL (MIS)REPRESENTATION OF IMMIGRANTS IN THE CENSUS 96 New York University Law Review 901 (October, 2021) Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants' rights but based on their rights as current and future... 2021
Ming H. Chen , Hunter Knapp THE POLITICAL (MIS)REPRESENTATION OF IMMIGRANTS IN VOTING 92 University of Colorado Law Review 715 (Summer, 2021) Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of... 2021
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