Showing papers in "Fordham Urban Law Journal in 2010"

Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed

Abstract: Introduction I. Unmet Legal Needs, Unrepresented Litigants, & Civil Gideon II. Reviewing Reports: The Impact of Representation A. Preliminary Considerations: Methodologies in the Reports B. Courts 1. Housing Cases 2. Family Law Cases 3. Small Claims Cases C. Administrative Agencies 1. Social Security Disability Appeals 2. Unemployment Cases 3. Immigration Cases 4. Other Administrative Appeals III. Assistance Short of Full Representation A. Pro Se Clinics, Self-Help Centers and Hotlines B. Assessing the Early Evaluation Efforts of Assistance Programs IV. Observations and Answers A. Beyond Representation 1. The Substantive Law 2. The Complexity of the Procedures 3. The Judge: Individual Practices and Perspectives 4. The Court's Operation B. Representation: What We Know 1. The Importance of Power 2. Not Just Any Advocate: The Importance of Knowledge and Expertise C. Applying What We Know From The Reports 1. Implications for Moving Forward 2. The Need for Clarity of Goals and Values V. Questions and Complications A. Questioning the Data B. When Positive Outcomes Could Be Negative Ones C. The Role of Expectations D. The Thorny Question of Resources E. Short-Term Versus Long-Term Change, Stability, Fluidity, and Backlash Conclusion INTRODUCTION Over the past decade, the phenomenon of self-representation in civil cases has received increased scrutiny. The courts' struggles with huge numbers of cases involving at least one party without counsel have led to questions about the proper role of the key players in the court system and the development of programs designed to facilitate self-representation. States have created Access to Justice Commissions to respond to the problems of those without access to legal representation. A revitalized movement seeking to establish a civil right to counsel has emerged, pressing for the expansion of the availability of counsel for the poor. The activity of the past decade comes against the backdrop of unmet legal needs, the inadequacy of funding for legal services for the poor, and reports demonstrating that litigants without counsel often fare poorly even where basic needs are at stake in the proceedings. (1) Viewed one way, facilitating self-representation and establishing a civil right to counsel could conflict. In this view, the response to the problems facing those without counsel is to provide assistance improving their ability to self-represent, not to provide counsel. The responses could instead be part of the same Access to Justice agenda. Proponents of self representation might believe that, even with robust assistance programs, some cases still are not appropriate for self-representation. Proponents of a civil right to counsel might acknowledge that, even with an expansion of the availability of counsel, no current proposal contends that counsel should be provided at public expense for all litigants in all civil cases. An approach viewing self-representation and civil Gideon as part of a common Access to Justice agenda suggests a common inquiry: what are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Not surprisingly, initiatives seeking an expanded right to counsel focus on scenarios in which basic human needs, such as child custody and shelter, are at stake. (2) Part of the question, however, is a research question: what does the data reveal about the characteristics of litigants, cases, courts, or agencies that help identify the cases in which the presence of counsel is most likely to impact the outcome of the case? …

"Sanctuary Cities" and Local Citizenship

Abstract: "San Francisco has become less like its [sanctuary city] self-image and more like many other cities in the United States: deeply conflicted over how to cope with the fallout of illegal immigration." (1) Introduction I. Four Dimensions of Citizenship and Local Citizenship A. Defining Citizenship B. Local Citizenship II. San Francisco's Ordinance A. Historical Background B. The Bologna Lawsuit C. Recent Changes III. San Francisco's Ordinance and Local Citizenship A. Local Citizenship as Legal Status B. Citizenship as Rights C. Citizenship as Public Engagement D. Citizenship as Identity Conclusion INTRODUCTION Citizenship's location is generally understood to reside primarily in the nation-state. (2) Accordingly, the term citizenship (3) typically evokes membership in a particular country. Yet, the concept of citizenship as one only bounded by national borders has long given way to the recognition that there are other places--both outside and within the nation-state--where citizenship is also located. (4) Indeed, as scholars have noted, sub-federal and sub-state spaces such as cities are sites where citizenship, particularly local citizenship or membership, has been articulated, constructed, or contested. (5) Critically, the construction of local citizenship within the larger space over which national citizenship dominates, presents complex legal, theoretical, political, and policy concerns. (6) Among these issues is the potential conflict between rights and privileges of local citizenship with the attendant rights and privileges of national membership. (7) Perhaps no other area of law best illustrates the tension between local and national citizenship than immigration law, particularly when examining the scope of membership, rights, and privileges of non-citizens. At the outset, the ability of non-citizens to gain full membership to the United States is governed by the federal government through the plenary power of Congress to regulate immigration law. (8) Specifically, through the Immigration and Nationality Act ("INA") and subsequent amendments. (9) Congress established the terms and conditions upon which non-citizens may be admitted, (10) removed, (11) become eligible for legal permanent residence, (12) and apply for naturalization. (13) Collectively, these provisions within the INA help to define some of the rights and privileges of non-citizens and determine the process by which non-citizens may ultimately become full members of the national polity. Sub-federal governments that pass laws that are inclusionary (14) or exclusionary (15) of non-citizens, particularly those who are in the United States without authorized immigration status or undocumented immigrants, fundamentally affect the congressionally prescribed rights and privileges of non-citizens. For instance, laws and policies that provide municipal identification cards to all residents, including undocumented immigrants, (16) convey the local government's intent to formally recognize and include them as local citizens. (17) By contrast, laws that deny undocumented immigrants entry into residential leases (18) signal their intent to exclude unauthorized immigrants from local borders, and therefore classify them as nonmembers in the local polity. (19) As these examples illuminate, both categories of laws--inclusionary and exclusionary--affect and shape the meaning of citizenship within the United States. This Article explores the ways in which sanctuary laws illustrate the tensions between national and local citizenship. Specifically, this Article examines how "sanctuary cities" have arguably constructed membership for undocumented immigrants located within their jurisdictions. Recognizing sanctuary cities as sites of local citizenship for undocumented immigrants takes the first step towards analyzing what implications, if any, these places might have on national citizenship, which may be examined more fully in the future. …

Access to Justice in a World of Expanding Social Capability

Abstract: I. Access to Justice and its Companions II. The Expanding Frontiers of Access to Justice I. ACCESS TO JUSTICE AND ITS COMPANIONS The phrase "Access to Justice" acquired its current meaning in the late 1970s. Earlier it had referred to access to the government's judicial institutions. (1) In post-World War II legal discourse, it occasionally appears as a description of the goal and benefit of legal aid, or of the means to equality before the law. (2) In the late 1970s, however, the phrase acquired a new and broader meaning: the ability to avail oneself of the various institutions, governmental and non-governmental, judicial and non-judicial, in which a claimant might pursue justice. (3) This vision of justice in many modalities and diverse institutional settings crystallized with the flourishing of the Florence Access to Justice Project. This project was sponsored by the Ford Foundation, the Italian Research Council ("CNR"), and the Italian Ministry of Education, under the direction of Mauro Cappelletti, a scholar of vast imagination and entrepreneurial energy. The work of the Florence project is embodied in the massive multi-volume series Access to Justice, published in 1978 and 19794 and in a small library of satellite volumes and law review articles. (5) Building on programs and experiments in many locations, the Florence Project codified a broadened notion of access beyond representation by lawyers and beyond courts as the site of justice-seeking. Looking back at the end of the decade, Cappelletti himself saw the development of the Access to Justice notion as comprising three "waves" exemplified by a series of institutional developments particularly marked in the United States: The first wave, beginning in 1965 with the Office of Economic Opportunity's neighborhood law firms program, involved the reform of institutions for delivering legal services to the poor. The second wave sought to extend representation to "diffuse interests" such as those of consumers and environmentalists: it commenced in the United States with the development of foundation-supported "public interest law firms" in the 1970s. The third wave followed in the 1970s with a shift in focus to dispute-processing institutions in general, rather than simply on institutions of legal representation; less formal alternatives to courts and court procedures ... emerged in bold relief.... (6) Access to Justice did not arrive on the legal scene unaccompanied. It was one of a set of intellectual triplets that appeared in the 1970s. Its siblings were the dispute perspective in legal studies and the Alternative Dispute Resolution ("ADR") movement. At their start, the three infants were very close, almost inseparable, but as they grew they experienced a kind of big bang sending them in different directions. As they retreated from one another, they were adopted by different parents and matured in very different environments with different companions. These triplets were the progeny, born late in life, of a remarkable movement of expansion of accountability and remedy fostered by courts and legislatures in the years between the end of World War II and the mid-1970s. An enlargement of remedies, an expansion of standing, abolition of old immunities, and the promotion of civil rights provided ordinary people with new occasions for using the courts and a greater likelihood of success when they did. (7) Programs for affording legal representation to poor and unrepresented groups proliferated. (8) An increasing number of legal professionals viewed such expansion as the test of professional achievement. (9) The first of the triplets to gain prominence was the dispute perspective in legal studies. I refer to a body of work that holds that the study of law should focus on the construction of disputes as well as on rules and courts. (10) This perspective envisioned adjudication in courts as only one of the various ways that society dealt with disputes--and a relatively infrequent one at that. …

Between Access to Counsel and Access to Justice: A Psychological Perspective

Abstract: Introduction I. Background: Unrepresented Litigants in a Lawyer-Dominated Environment II. The Subjective Experience of Litigants: Empirical Findings to Date A. Procedural Justice Criteria: Voice, Representation, and Participation B. Voice in Direct and Indirect Participation C. Does it Matter to People if They Have a Lawyer and in What Ways? D. Does it Matter if People are Denied Access to a Lawyer? Conclusion A. The Denial of Access to the Courts B. The Psychology of Representation C. Potential Changes in the Legal System INTRODUCTION "Access to justice" is a broad term that can be defined in different ways. In this volume alone we find different contributions which present different views of access to justice, and different answers to central normative questions concerning access to justice, such as how much access is appropriate, access to what exactly or access by whom. The movement to increase access to justice has likewise taken different directions, including the development of less formal forms of dispute resolution, simplification of legal processes, and the progress of in-court assistance to unrepresented litigants. Yet, traditionally, and for the most part, increasing access to justice has been related to increased access to legal counsel. (1) Having access to representation by an attorney is considered a central means to increase individuals' access to justice, i.e., access to legal institutions or to legal solutions to their problems. The ABA's current proposal to institutionalize a right to counsel in certain civil cases continues this traditional movement. It offers to deal with access problems by making legal services more accessible for greater parts of society and by framing access to counsel as an entitlement in more types of cases. This paper is written as part of the discussion around the Bar's proposal. (2) This conversation, we believe, presents an important opportunity to use empirical knowledge in order to revisit and explore anew some of the basic assumptions and features of the American legal system--features that are reflected in the proposal itself. In particular, we wish to focus on the equation between access to counsel and access to justice and the realities and difficulties faced by laypeople within the legal process. The primary purpose of this paper is to explore a psychological perspective on some of the issues concerning access to justice in civil litigation. This is an attempt to present what the existing literature, as well as additional suggested research, can and should teach us about the psychological aspects of the access challenge in civil litigation and about the needs concerning the expansion of the right to counsel to civil cases. Hopefully, the psychological point of view will enrich the discussion around the bar's proposal by focusing on the subjective experiences of represented and unrepresented litigants within the legal system. We will present a discussion that is based on needs rather than rights, on the subjective perceptions of individuals rather than objective, and normative evaluations concerning the value of representation. We are interested in the way individuals perceive the concept of "access", and to what degree they actually feel they have gained, or been denied, access to justice and under which specific circumstances. The values we will discuss are those procedural values that individuals identify with legal procedures that are fair and satisfactory. Public views, we believe, are one factor that needs to be considered when thinking about policy change. The bar's proposal is obviously an important step towards increasing many individuals' access to legal representation and to the courts. This is particularly essential in view of the centrality of professionals in the American system--a centrality that disadvantages pro se litigants within the court system. …

Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans

Abstract: Introduction I. The Micro View: Comparative Civil Legal Needs Surveys II. The Macro View: Comparative Legal Resources Conclusion INTRODUCTION Lawyers don't like numbers--as I often joke with my students, that's why they choose to go to law school. Kidding aside, however, the relative discomfort with numbers among lawyers individually adds up professionally to a slim empirical base on which to assess how well American lawyers are doing what they promise the public they will do: deliver legal services with competence and in the public interest. Even for the well-heeled client--the corporation that enjoys the services of our largest and most sophisticated firms, the ones to which the best and the brightest from our law schools flock--hard numbers on what legal services cost and what fraction of that cost is for real value are few and far between. For example, we have little systematic data on legal costs, and essentially none showing the relationship between expenditures and results. Assessing the legal landscape for the ordinary citizen who has sporadic contact with the legal profession is a game played mostly in the dark. What little data there is tends to be focused on the corporate legal services market which has money to spend on such information: hourly rates for the largest corporate law firms, for example, are now surveyed annually and published in the American Lawyer Magazine and National Law Journal. The American Intellectual Property Lawyers Association publishes data on the total cost of I.P. litigation. Proprietary studies by legal consultants such as Altman-Weil (recently absorbed by American Lawyer Media) and Hildebrandt International provide data that law firm managers and general counsel can use to assess their own management practices, billing rates and profitability. Even when these studies purport to investigate the cost of legal services for non-corporate clients--individuals in need of family law or employment representation for example--the data quality is significantly inferior. For example, the Altman-Weil survey for 2005 reports average hourly rates for partners in General Business based on responses from 567 lawyers; for Family partners the average is based on responses from 34 lawyers. (1) Labor-Management partner averages are based on 224 respondents; Labor-Union on 25. (2) That implies the margin of error on the averages reported for family lawyers or union-side labor lawyers is much bigger than that reported for lawyers providing general business advice or advising management. Systematic efforts to assess how well the legal markets and institutions that American lawyers (together with the judiciary) claim they have exclusive authority to structure, serve, and regulate are few and far between. In 1994, the American Bar Association ("ABA") released a study of the extent to which poor and moderate-income households experienced a legal need--defined as a problem that could be addressed by the legal system--and how often those with a legal need sought the assistance of a private practitioner or legal aid lawyer. (3) A proposal to update this study in 2005 was rejected as unnecessary and too expensive. (4) As a substitute, the Legal Services Corporation ("LSC") reviewed nine state studies of legal needs of the poor, documented the extent to which LSC-funded providers had to turn away requests for assistance, and calculated the number of legal aid attorneys in the country. (5) Also in 2005, the ABA published a study on pro bono work, which concluded that American lawyers on average provide thirty-nine hours a year of pro bono services to the poor. (6) That is a little over 2% of all legal effort. Not only are there few studies of the performance of the legal system for non-corporate clients (the distinction Mare Galanter draws between "natural" and "artificial" persons (7)), those that exist are almost uniformly focused on the delivery of legal services to the poor as a form of charity or welfare assistance. …

Acculturating forensic science: what is ‘scientific culture’, and how can forensic science adopt it?

Abstract: Introduction I. The NAS Report's Treatment of Scientific Culture II. Science and Scientific Method A. Science B. Scientific Method III. Science as Work IV. Forensic Work V. Normative Goals for Forensic Tasks VI. The Current State of Affairs A. Historical Explanation for the Current State of Affairs VII. Building a Forensic Scientific Culture A. Hierarchy B. The Deskilling of Forensic Science INTRODUCTION The topic for this special issue is: "How should judges, legislators, and the legal community in general respond to the National Research Council of the National Academy of Sciences' 2009 report, Strengthening Forensic Science in the United States?" I think there are some fairly easy answers to this question that should not brook a great deal of controversy or disagreement. First, validation studies (1) should be performed for forensic assays (2) for which they have not yet been performed. (3) Although the NAS Report is fairly clear about the absence of validation studies, some controversy remains over whether validation studies have been performed for some assays. Therefore, Dr. Bohan suggests that "validation investigations" should be performed to assess the state of validation of each assay. (4) These might be followed by validation studies. Second, the proposed National Institute of Forensic Science (NIFS) should be created. (5) Certainly, there are potential downsides and criticisms, but creating NIFS is probably better than the status quo. If created, the Institute should be in the form proposed by the NAS Report. (6) Crucial aspects of this form include that it should be an independent agency, especially independent of law enforcement, and a proper scientific organization staffed by scientists. If it is "captured" (7) by law enforcement, it becomes less obvious that it would be a force for improvement rather than stagnation. Third, the reporting of forensic analyses results should be reformed and standardized such that they are scientifically supportable. (8) Judges should restrict the admissibility of forensic assays that lack the aforementioned validation. (9) Finally, judges, legislators, and the legal community should contemplate the broader meaning of the NAS Report's conclusion that the courts' handling of forensic evidence over the past couple of decades has been "utterly ineffective." (10) Setting forensic evidence aside, what weaknesses in our current system of justice does this "utter ineffectiveness" identify? Reforms to the justice system should be enacted so that in the future, courts' handling of scientific issues is less likely to become a glaring embarrassment to the legitimacy of the courts. These are all things that I think many scholars will agree should be done. Whether they are likely to be done and what is the best strategy to assure that they are done will command somewhat less consensus and may well be the subject of other contributions to this special issue. Indeed, in some cases, compelling arguments may be made that half-hearted, ill-conceived attempts to implement some of these reforms may end up making the situation worse rather than better. All that being said, however, simply asserting that the recommendations of the NAS Report should be followed seems to avoid a much larger issue. An NAS Report is, after all, a highly inefficient, expensive, and slow way of accomplishing tasks. It is also "one-off," in the sense that we cannot realistically expect there to be periodic NAS Reports indicating what needs to be done in forensic science, especially given the well known difficulties there were in bringing this particular NAS Report into being. (11) The larger issue is why the aforementioned actions never occurred in the first place. In other words, why was it necessary for the National Academy of Sciences (NAS) to intervene in 2009 to demand that validation studies be conducted a century after the introduction of latent print evidence into court, (12) nearly eighty years after the introduction of firearms and tool mark evidence, (13) nearly fifty years after the introduction of bite mark evidence, (14) and more than a century after the introduction of handwriting evidence? …

Examining the Real Demand for Legal Services

Abstract: Introduction I. What Can We Figure Out Using Extant Studies? A. The Detroit Area Study B. American Bar Foundation Legal Needs Study C. The Civil Litigation Research Project Study D. Later Studies II. Implications A. The Need for a Baseline B. The Need for More Specific Justifications for Legal Assistance Conclusion INTRODUCTION Over the last quarter century (through 2008), at least twenty-six states plus the District of Columbia have seen investigations of legal needs of low and/or modest income citizens. (1) Some of these investigations were undertaken at the initiative of state bars; some were undertaken by or at the request of each state's highest court; and some were undertaken by ad hoc groups concerned about access to justice. The findings are remarkably consistent: for the vast majority of legal problems or legal needs of low income households, and only slightly fewer of the needs of moderate income households, no one from the household obtained the advice or assistance of an attorney. In the words of the 2003 report on civil legal needs in Washington state, "[l]ow-income people face eighty-eight percent of their legal problems without help from an attorney." (2) This is a shocking figure. It calls for a response. It calls for action. If only 15% of persons of low income get legal assistance when they have a legal problem, there must be a problem. It seems self-evident that the problem must be that the vast majority of persons of low income cannot afford to get the legal assistance that they need. It also seems self-evident that measures are needed to obtain legal assistance, normally taken to mean the services of an attorney (at least in the United States), (3) to literally the millions of people of low (and modest) income who do not have the resources to hire a lawyer. The legal profession needs to step up to the plate. The government (which really means the taxpayer) needs to step up to the plate. Law schools need to step up to the plate. The game is the affordability of legal services, or so we are told over and over by bar leaders, legal needs task forces, and prominent scholars. (4) But is affordability really the central issue? Respondents in legal needs studies have often been asked why they did not obtain the assistance of a lawyer. Only a small minority specifically mention concerns about costs. For example, the American Bar Association Comprehensive Legal Needs Study ("ABA Study") found that only 16% of low-income respondents and 8% of moderate-income respondents cited "cost concerns." (5) The Washington state study found that 22% of its respondents "were worried about cost" in deciding not to obtain assistance. (6) The Oregon study found that only 11% of its respondents mentioned "worried about cost[s]" as among the reasons for not obtaining a lawyer's help. (7) Across the various studies, other factors, ranging from fatalism (e.g., "nothing could be done"), through self-help (e.g., "I was able to handle it myself"), to not recognizing the legal element of the problem or issue, tended to be mentioned more often than cost. What if the issue for most people, low income or otherwise, really is not cost? Or, what if cost is just as much an issue for those who could afford at least some legal assistance but choose to make a reasoned cost-benefit judgment? What if 85% of those in the top 20% income bracket are no more likely to turn to lawyers than are those in the bottom 20% bracket? While the 85% figure (or whatever figure a particular legal needs study comes up with) is impressive, it is, as described in Darrell Huffs classic book, How to Lie with Statistics, "a semi-attached figure." (8) Specifically, against what are we to judge a particular statistic or figure? Huff gives the example: "Four times more fatalities occur at 7 p.m. than at 7 a.m." (9) The implication is that it is safer to be on the road at 7 a. …

Federalism, Subsidiarity, and the Role of Local Governments in an Age of Global Multilevel Governance

Abstract: Introduction I. Globalization, Urbanization, and Global Governance: The Emergence of Multi-Level Global Governance A. Globalization B. Urbanization C. Global Governance II. Federalism and Subsidiarity as Principles of Government A. Federalism: A Theory of Two Recognized Jurisdictions 1. The Characteristics of Federalism 2. The Merits of Federalism and Its Appeal for Global Governance B. The Principle of Subsidiarity 1. The Economic Interpretation of Subsidiarity: The Theory of an Infinite Number of Fully Replaceable and Flexible Political Units 2. The Religious Interpretation of Subsidiarity: The Uniqueness of Every Sphere of Human Activity 3. Subsidiarity and Global Governance III. The Status of Cities in Federalism and in Global Subsidiarity A. Cities in Federalism and in Subsidiarity B. Cities in Global Subsidiarity Conclusion INTRODUCTION One of the hallmarks of our age is a realization--a product of objective discoveries and of ideological transformations--that a growing number of contemporary problems and challenges require decision-making and implementation at different territorial spheres and by different governmental (and political) levels. (1) Immigration, climate change, labor standards, and the economic crisis are high-profile examples of the fact that it is no longer possible--nor is it desirable--to think, decide, and implement rules and policies only at the federal level or at the state level or at the local level; rather, it has become necessary to govern them at many levels of government--sub-national, national, and supra-national--simultaneously. Yet, our legal systems and political institutions have not yet adapted themselves to this realization and they do not reflect it fully or sufficiently. Furthermore, as I argue in this Article, the two most dominant political theories that are supposed to offer a solution to this growing need of, and belief in, multilevel governance--federalism and subsidiarity--are inadequate and incapable of doing so. And while both theories are invaluable sources for inspiration for the creation of a legal (and political) system that will better fit our changing realization regarding the multi-spheral (global, national, regional, and local) nature of human conflicts and contemporary challenges, I claim two things regarding them: first, that they should be understood as distinct from each other (despite the fact that they are often confused and not theorized as distinct political theories); and second, that subsidiarity is better fit for the task of articulating multilevel governance, even if only as a tool for loosening the grip of federalism over our political and legal theory. The growing understanding of the need to govern and solve problems at various territorial spheres and by multi-tiered governmental institutions should be read as manifesting three processes that have become emblematic of our times: globalization, urbanization, and the shift from government to governance. These three tectonic shifts involve fundamental material and ideological transformations that are reconfiguring individuals, societies, and governments all over the world. And it is indeed the intersection of these three phenomena that this Article identifies as the source of the need to rethink our current political-legal models. Together, these processes require not only a new division of power between different levels of governments in order to manage various resources more effectively, or in order to tackle different challenges more efficiently; they suggest that it is imperative that we conceptualize afresh the relationship between different territorial spheres--and therefore between competing identities and political affiliations--and that we form new legal principles in order to govern and regulate these new relationships. …

Border Exceptionalism in the Era of Moving Borders

Abstract: Historically, the courts have indicated that the tasks of enacting and enforcing immigration laws are federal functions The federal agents who police the nation's borders have exceptionally broad policing authority--an authority that the courts have justified based on the special need to secure the nation's borders from a variety of threats Part I of this essay will summarize the Supreme Court jurisprudence that has endorsed exceptionally broad policing powers not only at international borders, but also in a much wider swath of immigration enforcement contexts Over the past decade, as a consequence of the expansion in the number of immigration enforcement agents at the federal level and the rapidly increasing number of sub-federal agents involved in immigration control efforts, immigration enforcement has become a part of the everyday fabric of policing in the United States Therefore, after summarizing the broad powers granted to police in the immigration enforcement context as a result of the Court's jurisprudence of border exceptionalism, Part II of this essay will consider the implications of this jurisprudence in light of the recent trends that have transformed the nature and scope of immigration policing This Part concludes that existing law is insufficient to protect against racial profiling and unreasonable police arrests and detentions, and that the implications of these recent developments extend well beyond the sphere of immigration enforcement TABLE OF CONTENTS Abstract Introduction I A Brief History of the Supreme Court's Border Exceptionalism A Searches At--And Near--The Border B Border Exceptionalism Migrates to the Interior II The Expansion of Border Exceptionalism (and What to Do About It) A Increasing Immigration Enforcement and the Spread of Border Exceptionalism B What is to be Done About Border Exceptionalism? INTRODUCTION Immigration law and policy have entered a period of radical upheaval Different people have different perspectives as to what constitutes the "watershed" moment for immigration law in recent history, but scholars have tended to focus on several key transformative events, including: (1) The criminalization of hiring unauthorized workers, which was the product Immigration Reform and Control Act of 1986; (1) (2) The increasing militarization of the US-Mexico border region, which spiked in the early 1990s and has continued through to the present; (2) (3) The radical Congressional overhaul of immigration law in 1996, which, among other things, led to a vast increase in the grounds for the removal of lawful permanent residents and the scope of mandatory administrative detention for noncitizens in removal proceedings, while simultaneously stripping courts of jurisdiction to hear many related legal claims; (3) (4) The reorganization and expansion of the immigration enforcement bureaucracy following the terrorist attacks of September 11, 2001; (4) (5) The rise in the use of criminal prosecutions in an effort to "manage migration through crime;" (5) and (6) The rise of subfederal law enforcement participation in immigration enforcement (6) But there are other factors that have contributed to the current policy failures in the immigration sphere These are not events, but rather critical failures to enact changes in law and policy, including: (1) A failure to expand and improve the Executive Office of Immigration Review (EOIR) and the Board of Immigration Appeals to deal with the growing administrative caseload generated by the increase in removals and the expansion of immigration detention; (7) (2) A failure to enact comprehensive immigration reform, or even piecemeal legislation, such as the Development, Relief and Education for Alien Minors Act (DREAM Act), to address the legal status of (at least some of) the more than ten million unauthorized migrants living and working in the United States; (8) (3) A failure to systematically address the United States' economic and social policies that have spurred emigration from Mexico; (9) (4) A failure to reexamine policies on racial profiling in immigration enforcement even as the number of actors involved increases and their overall expertise in immigration law decreases; (10) and (5) A failure to revise quotas for legal immigration and to revisit the allocation of nonimmigrant visas to take into account the realities of the modern economy …

Formalizing Local Citizenship

Abstract: INTRODUCTION States and localities have had an uneasy relationship with non-citizens, or at least that is how we mostly imagine it Before the advent of federal immigration controls in the late nineteenth century, the states were left to their own devices in restricting freedom of movement As the federal government sought to impose control over the admission, removal, and treatment of non-citizens, state and local measures discriminating against non-citizens were brought into relief through diplomatic controversy and judicial challenge Pathologies typically occupy a higher profile in our histories, and there were clearly many contexts in which states and localities enjoyed a benign, even close relationship with non-citizen immigrants and immigrant communities With the zenith of federal exclusivity over immigration regulation through the mid and late twentieth century, however, state and local governments were presumed to have antagonistic tendencies towards non-citizens The reflex, constitutional and otherwise, was to eliminate sub-federal discretion in the area A revision appears well under way Although concerns persist with respect to state and local enforcement of federal immigration laws, state and local governments have demonstrated a capacity in recent years to engage constructively with those lacking national citizenship, a capacity that is now recognized in the scholarly mainstream (1) The constructive capacities of states have been (re)enabled by recent immigration and the presence of significant numbers of persistent non-citizens within particular sub-federal communities Large-scale immigration is not a new phenomenon State and local reception of immigrants may echo historical experiences, sometimes for the worse, but also for the better This essay will make the case for devising forms of state and/or local citizenship for aliens (2) Sub-federal citizenship is already implicit in various practices that recognize aliens as members of sub-federal communities Some of these practices relate to legally-present non-citizens only, as with non-citizen voting and permissive practices relating to non-citizen employment in the public sector Some relate to non-citizens regardless of immigration status, including the issuance of local identity cards and eligibility for in-state tuition in public post-secondary education These measures are not simply pro-immigrant Rather, they reflect social solidarities and community membership among those who do not have full membership in the national community They add up to a form of local citizenship for aliens (3) The solidarities evidenced by these practices could profitably be bundled into a more formal status under the citizenship label Local citizenship decoupled from federal citizenship and immigration status would have expressive value beyond the sum of its parts It could also have instrumental value in resolving the peculiar challenge of citizenship in this context, flowing from conflicting local and national postures towards undocumented non-citizens Local citizenship would appear trumped by federal immigration law in the same way that sanctuary measures have been trumped by federal law This is partially correct; the undocumented alien/local citizen would not be legally insulated from removal from the community by the national government Formal local citizenship, however, would differ from sanctuary measures Sanctuary is by its terms conflictual with federal regulation; as sanctuary from federal enforcement of the immigration laws, it is only actuated relative to the federal scheme It is also expressive of universal human solidarity rather than of local solidarity All undocumented non-citizens are beneficiaries of sanctuary measures Local citizenship, by contrast, would be particularized and by its terms detached from federal regulation This could make it a powerful discursive tool in defeating federal interference with local community structures …

Equality Before the Law and the Social Contract: When Will the United States Finally Guarantee Its People the Equality Before the Law that the Social Contract Demands?

Abstract: Introduction I. Equality Before the Law as a Precept of the Social Contract II. Constitutional Enforcement of Equality Before the Law III. What the Foreign Experience Suggests About Defining the Scope of a "Right to Equal Justice" in Civil Cases IV. What Foreign Experience Suggests About the Design of a System Implementing a Right to Equal Justice A. Eligibility Criteria B. Program Governance and Administrative Arrangements C. Delivery Systems V. Drafting a Generic State Statute Implementing a Right to Equal Justice Which Draws on Foreign Laws and Experiences VI. What Foreign--and Domestic--Experience Suggest About the Cost of Implementing a Right to Equal Justice A. Comparative Expenditures on Civil Legal Aid B. Expenditures on Civil Legal Aid Compared with Other Public Expenditures Benefiting the Poor VII. If and When and Why It Hasn't Happened Already Appendix INTRODUCTION My assignment in this symposium's dialogue about the potential of a right to counsel in civil cases in the United States is to supply a foreign perspective--to suggest what, if anything, the United States might have to learn from what has happened abroad as to this right. In one sense, it would be possible to merely provide a brief overview in a single sentence, and end the article. That sentence would read: Most European and several countries elsewhere in the worm have recognized a right to counsel in many or most civil cases for as long as decades or even centuries--and many of those countries are willing to spend, proportionately, anywhere from three to twelve times as much of their national income as the U.S. currently does on the provision of counsel to their lower income populations in civil cases. But while that sentence might be an adequate headline and for some readers perhaps a big surprise, it fails to supply the essential details that make the foreign experience so important in the United States. It does not suggest why American courts should pay attention to what has happened in constitutional law abroad. It also does not explain why American legislators should care about how their foreign compatriots have structured the right in their countries or the problems they face and how they have tried to address those problems. Finally, it does not suggest what an equal rights statute might look like if legislators tried to apply those lessons in the context of U.S. civil litigation. I have been writing about foreign legal aid programs for over three decades, starting with a collaboration with Professors Mauro Cappelletti and James Gordley on the first book-length comparative study of civil legal aid as it evolved in Europe and North America. (1) Over the years, I have written another half dozen articles on the subject. (2) Thus, I don't approach this subject with a clean slate, and not everything in this Article will be brand new. Rather, what follows gathers together themes and information from prior writings and updates. In some instances, it amplifies both the information and the themes, then applies some of the lessons of the foreign experiences to the design of a draft statute that implements a right to equal justice, and therefore a right to counsel when one is needed to satisfy that guarantee. This Article begins with a discussion of the theoretical underpinnings of a right to equality before the law in civil cases, and how that theory found its way into statutes and constitutional provisions in both Europe and the United States. This is followed by an examination of how courts on the two continents and elsewhere in the world have interpreted the constitutional provisions that emanated from this theory and why those decisions are relevant to courts in the United States. The Article then describes how nations that have the right as a matter of statutory or constitutional law have implemented it. This leads to discussion of a draft generic state statute that would apply some of the lessons learned from the foreign experience to the American context. …

The Rise and Fall of Employer Sanctions

Abstract: Workplace raids by gun-wielding Immigration and Customs Enforcement (ICE) agents that resulted in the mass arrests of dozens and sometimes hundreds of employees have ceased under the Obama administration. But "silent raids," or audits of companies' records by federal agents, that replaced them have resulted in the firing of thousands of undocumented workers. The administration defends these "softer, gentler" operations, yet the result is the same: workers who are here to support their families are out of work. In this essay, David Bacon and Bill Ong Hing argue that ICE raids--be they of the Bush or the Obama kind--should cease. The basis for these operations--employer sanctions--should be repealed, and true reform that recognizes the rights of all workers should be enacted. TABLE OF CONTENTS Abstract Introduction I. Obama's Interior Enforcement Strategy II. Background on Employer Sanctions III. Union Focus--Coincidence or Intentional IV. Institutionalized Racism Conclusion INTRODUCTION Ana Contreras would have been a competitor for the national tai kwon do championship team in 2009. She was fourteen years old. For six years she went to practice instead of birthday parties, giving up the friendships most teenagers live for. Then in October 2009, disaster struck. Her mother Dolores lost her job. The money for classes was gone, and not just that. "I only bought clothes for her once a year, when my tax refund check came," Dolores Contreras explains. She continues: Now she needs shoes, and I had to tell her we didn't have any money. I stopped the cable and the internet she needs for school. When my cell phone contract is up next month, I'll stop that too. I've never had enough money for a car, and now we've gone three months without paying the light bill. (1) Dolores Contreras shared her misery with eighteen hundred other families. All lost their jobs when their employer, American Apparel, fired them for lacking immigration status. For months she carried around the letter from the Department of Homeland Security (DHS), handed to her by the company lawyer. It says the documents she provided when she was hired were no good, and without work authorization, her work life was over. (2) Of course, it was not really over. Contreras still had to keep working if she and her daughter were to eat and pay rent. So instead of a job that barely paid her bills, she was forced to find another one that would not even do that. Contreras is a skilled sewing machine operator. She came to the United States thirteen years earlier, after working many years in the garment factories of Tehuacan, Puebla, Mexico. There, companies like Levis make so many pairs of stonewashed jeans that rumor has it the town's water has turned blue. In Los Angeles, Contreras hoped to find the money to send home for her sister's weekly dialysis treatments, and to pay the living and school expenses for four other siblings. For five years she moved from shop to shop. Like most garment workers, she did not get paid for overtime, her paychecks were often short, and sometimes her employer disappeared overnight, owing weeks in back pay. Finally Contreras got a job at American Apparel, famous for its sexy clothing, made in Los Angeles instead of overseas. (3) She still had to work like a demon. Her team of ten experienced seamstresses turned out thirty dozen tee shirts an hour. After dividing the piece rate evenly among them, she would come home with $400 for a four-day week, after taxes. She paid Social Security too, although she will never see a dime in benefits because her contributions were credited to an invented number. (4) Now Contreras is working again in a sweatshop at half what she earned before. Meanwhile, American Apparel took steps to replace those who were fired. (5) Contreras says they are mostly older women with documents, who cannot work as fast. …

Access to Justice: Some Historical Comments

Abstract: This is a symposium on access to justice, a symposium with contributions from quite a few distinguished experts. Here, at the outset of the conference, I want to set out some modest preliminary thoughts on what "access to justice" might mean, and comment on how access to justice has fared historically. We have to begin with some attempt to explain what we are talking about. What do we mean by "access to justice"? In order to answer that question, we have to ask some other, more basic, questions: who is supposed to have access; to what; and for what purpose? Today, when people talk about "access to justice," it seems to me that they have a particular image in mind. They are thinking of a person, or an organization, with some sort of legitimate claim or complaint. The question is whether there is a realistic and practical way of turning this claim into reality, and of pursuing this complaint. For criminal defendants, the claim is to a fair and honest trial or some similar proceeding. Another aspect-and an important one--is access to information. In England, there are advice bureaus that inform people about their legal rights. In this country, more and more, the web serves up information that is often quite rich and accurate. We can ask, also, what is the "justice" we are referring to in the phrase "access to justice?" Does it mean the formal judicial system, so that siphoning off cases or shunting them into other arenas is arguably a denial of access to justice? Most people would not accept this position. There is no need to equate justice solely within the formal judicial system. There are many other methods of resolving disputes--arbitration, mediation, and so on--which may work better, and even more justly, than resorting to the formal court system. These alternatives are not necessarily a good thing. Mandatory arbitration, as we all know, can be, and has been, criticized on a number of grounds. Access to this kind of alternative way of settling a dispute would not be access to justice, at least in certain circumstances. So far, we have talked about access to justice in basically procedural terms. But the phrase can also mean something quite different. "Justice" might refer not to an institution or a process, but to a concrete result--that is, "justice" in the sense of a fair outcome, or getting one's due. The Supreme Court of the United States has suggested that it is valid (constitutionally speaking) to execute an innocent man, as long as he has had a fair trial. (1) I suspect most ordinary people, as long as legal training has not mangled their minds, would find this both bizarre and revolting. Justice to most of us is, above all, an outcome. The people who work to improve access to justice are usually concerned about the problems of specific people or groups. They are thinking about the poor, or the middle class, or both. They are thinking about a miscellaneous collection of downtrodden, unpopular, or marginal people--whether they are Gypsies, convicted criminals, aliens, high school students, or members of unpopular religious sects. Thus, the ideal program of activists who want to increase access to justice would be to empower those individuals and groups who are somehow prevented from getting their just deserts. Improving access to justice can be, in short, a procedural or an institutional issue; and, at the same time, a substantive issue. It is also very much a matter of economics. Justice can be expensive. If justice is too expensive, it has to be subsidized. This is the essence of the famous Gideon case, which is discussed below. The ideal system of justice would be cheap and convenient, open to the claims of the underdogs, and would give participants, within reason, what they want--provided that what they want is what society agrees they ought to have. Cheapness and convenience, while obviously important, are hollow and meaningless without a working system of relevant rights. …

Immigration as Urban Policy

Abstract: Immigration has done more to shape the physical and social landscape of many of America's largest cities than almost any other economic or cultural force. Indeed, immigration is so central to urban development in the United States that it is a wonder why immigration is not explicitly discussed as an aspect of urban policy. Yet in the national conversation over immigration, one would strain to hear it described in this manner. This essay addresses this oversight by making the case for a reorientation of immigration toward urban policy; and it does so by advocating for an immigration regime that both explicitly recognizes the role of immigration as an instrument of urban development, and sees urban policy as a vital complement to our federal immigration regime. As this essay outlines, there are good reasons for such an urban policy reorientation from the perspective of both urban and immigration policymakers. At the same time, significant obstacles exist, not only in the structure of our immigration laws, but also the prevailing organization of our local governments. Thus, the essay concludes by proposing a reform to our immigration regime that advances the aims of reorienting immigration toward urban policy, addresses the structural obstacles that stand in the way, and suggests further avenues of reform going forward. TABLE OF CONTENTS Abstract Introduction I. The Reasons for Immigration as Urban Policy A. Why Immigration Should Matter to Urban Policymakers B. Why Urban Development Should Matter to Immigration Policymakers II. The Legal Limits to Immigration as Urban Policy A. Why Federal Preemption is No Obstacle B. The Legal Limits of Regional Considerations in Immigration Law C. Deficiencies in the Structure of Regional Decision-making III. Empowering Immigration as Urban Policy: A Modest Proposal A. The Proposal B. Room for Expansion C. Addressing Potential Concerns Conclusion INTRODUCTION Immigration has done more to shape the physical and social landscape of many of America's largest cities than almost any other economic or cultural force. Its effect on established immigration gateways is clear: New York City, a traditional reception area for newcomers to the United States, continues to be an ever-shifting palette of immigrant neighborhoods and cross-ethnic interactions; (1) Los Angeles, with an Anglo population of more than seventy percent in the 1970s, (2) is now both derisively and admiringly called the "Capital of the Third World"; (3) Miami, with its large number of Latino residents and concentration of Cuban financiers, embraces its demographic makeup not only as a source of cultural pride, but also in its bid as the financial gateway to Latin America. (4) At the same time, interest in immigration is quickly spreading to other metropolitan regions as well. With the immigrant population soaring in "boomtown" cities like Las Vegas, Houston, Dallas, and others in the Sun Belt, (5) the impact of immigration on the newest wave of urban development seems to parallel the immigrant-driven urbanization of earlier eras. All the while, immigration is drawing attention in regions without significant immigration inflows at all; many Rust Belt cities like Cleveland, Pittsburgh, and Detroit have raised the prospect of immigration as an urban revitalization strategy. (6) Indeed, immigration appears to be so central to urban development in the United States that it is a wonder why immigration is not explicitly discussed as an aspect of urban policy. Yet in the national conversation over immigration, one would strain to hear it described in this manner. Despite the significant impact of immigration on our metropolitan regions and the importance of urban development to this nation's social and economic prosperity, there is still a distinct sense that urban interests are one step below the "national" concerns that guide the development of immigration laws. …

Representation in Mediation: What We Know From Empirical Research

Abstract: Introduction I. Empirical Findings Regarding Representation in Mediation A. How Many Parties Are Unrepresented in Mediation? B. What Effect Does Representation Have on the Mediation Process? 1. Does Representation Enhance Party Preparation for Mediation? 2. Does Representation Enhance the Fairness of the Mediation Process and Reduce Pressures to Settle? 3. Does Representation Enhance or Limit Party Participation and Expression of Views? a. Opportunities for Parties' Discussion and Improved Understanding b. Parties' Participation in Mediation and Chance to Tell Their Views c. Relationships Among Voice, Participation and Assessments 4. Does Representation Make the Mediation Process More or Less Contentious? C. What Effect Does Representation Have on Mediation Outcomes? 1. Does Representation Facilitate or Impede Settlement? 2. Does Representation Lead to Better or More Fair Settlements? Conclusion INTRODUCTION Across jurisdictions, one or both parties typically are unrepresented (1) in a minority of filed general civil cases (3% to 48%), in a majority of domestic relations cases (35% to 95%), and in most cases in small claims and housing courts (79% to 99%). (2) Whether unrepresented litigants are able to obtain a fair result in litigation is a major concern, given their lack of information about court forms and processes, lack of knowledge of substantive law and rules of evidence and procedure, and lack of case presentation and negotiation skills. (3) Additional concerns are the potential burdens that large numbers of unrepresented parties might pose for court staff and judges. (4) Proposals to enhance unrepresented civil litigants' access to meaningful justice can be grouped into three sets. One set recommends that courts do more to facilitate unrepresented litigants' ability to handle their cases themselves, such as by providing instructions, simplified forms, and increased assistance from court personnel or volunteers. (5) Another set of proposals urges courts to provide alternative dispute resolution ("ADR") programs, particularly mediation, for unrepresented litigants. (6) The third set of proposals focuses on increasing the availability of legal representation. (7) Proposals to expand legal representation generally are silent as to whether they envision providing counsel for ADR proceedings. The ABA proposal does address this issue, but different positions are expressed in different documents. In the report accompanying the ABA resolution, the provision of counsel is limited to fora that occur in the "litigation context" and in which the process is "adversarial." (8) In another document, however, the recommendation is to provide "a full range of services in all forums" including, among others, "representation in negotiation and alternative dispute resolution." (9) Thus, the ABA proposal presumably includes providing counsel for adversarial court-connected ADR proceedings like arbitration, although it is not clear whether it extends to "non-adversarial" court-connected ADR proceedings like mediation or neutral evaluation. (10) In practice, however, there is no distinct line between "adversarial" and "non-adversarial" processes. Although the mediation process itself may be considered non-adversarial, it often takes place in the middle of adversarial litigation. In many courts, mandatory mediation is a formal step in the court management of litigation; (11) if the parties do not settle in mediation, they are immediately back in the adversarial "litigotiation" process. (12) Just as there is no clear separation between negotiation and litigation, there is no clear separation between mediation and either negotiation or litigation. (13) The assumption that representation is not needed in mediation appears to underlie proposals that exclude mediation from the processes for which counsel should be provided, as well as proposals that urge courts to provide mediation programs for unrepresented litigants. …

Because You're Mine, I Walk the Line: The Trials and Tribulations of the Family Visa Program

Abstract: The current backlog of over 3.5 million immigration visas places strains on mixed immigration status families and exacerbates the undocumented population problem. Families who choose to wait for a visa to become available before reunifying may strain the family unit. Those who reunify in the United States without first obtaining legal status face deportation and inadmissibility because of their unlawful residence in the United States. Congress has made some attempts to alleviate these strains. Unfortunately, the broad intent of these statutory changes has run up against narrow administrative interpretation. Nonetheless, in the present political climate, administrative solutions that seek to solve inadequacies in the current system are more politically expedient than installing a completely new family visa program. Therefore, immigration reform efforts must focus on expansive statutory interpretation of these and other existing statutes. In this essay I outline the social costs of an inadequate family visa program and offer some suggestions for administrative improvements to the program that do not necessitate legislative action. However, the inadequacies of the current family petition system must eventually be addressed through a congressional overhaul of the process. Therefore, I visit the history of narrow administrative interpretation of immigration legislative action to highlight how important agency interpretation is in the drafting of immigration legislation. I conclude the essay by discussing the elements I believe should be included in family visa petition reform. TABLE OF CONTENTS Abstract Introduction I. The Line: The Visa Petition Program Basics II. Jumping the Line: The Rise of Undocumented Mixed Status Families in the United States III. Forced Off the Line: The Declining Ability of Beneficiaries to Legally Immigrate . A. Legislative Roadblocks to Remaining on Line and Advocacy Efforts to Remove Them B. Life's Roadblocks to Remaining on Line and Advocacy Efforts to Remove Them C. The Score Card on Efforts to Place Relatives Back on Line. IV. Redrawing the Line: Minimizing Family Reunification Failures INTRODUCTION The Immigration and Nationality Act (INA) permits American citizens to immigrate a spouse, parent, or child (unmarried and under twenty-one years old) to the United States. (1) These family members, commonly known as immediate relatives, are not subject to the congressional annual limits on immigrant visas. (2) Approximately 536,000 immediate relatives of American citizens immigrated to the United States last year. (3) The spouses and unmarried children of Lawful Permanent Residents, as well as the siblings and adult or married children of U.S. citizens, can also immigrate, but they must wait for an available immigrant visa. (4) The United States issues 376,000 immigrant visas each year, of which 226,000 are allocated for non-exempt family immigration. (5) Unfortunately, the allocated visas are insufficient. As a result, there are approximately 3.5 million pending family visa applications. (6) Moreover, because no more than 26,260 visas can be granted to a country per year, there is a huge backlog for Mexico and the Philippines. (7) There are 1.5 million visa applications pending for nationals from these two countries, translating into decades-long waits for visa approvals. (8) Much can happen while individuals wait for visa approvals. The desire to see loved ones can lead to individuals entering or remaining illegally in the United States. The petitioning relative can die, a marriage can be terminated, or a derivative child (9) can get married and be rendered ineligible for a visa. United States immigration laws account poorly for these externalities. This essay catalogs the process and bottlenecks faced by families attempting to navigate the immigration process and examines some of the proposed changes. …

Immigration Enforcement versus Employment Law Enforcement: The Case for Integrated Protections in the Immigrant Workplace

Abstract: In considering specific provisions of the Immigration and Nationality Act that can be "fixed" in the absence of comprehensive immigration reform, we must seek to ameliorate the unintended consequences of existing provisions. One important and potentially devastating consequence has been the exploitation of noncitizen workers arising out of the implementation of the employer sanctions provisions of the Act. The employer sanctions provisions were implemented to punish employers who knowingly hired undocumented workers. Since its enactment, however, it has been workers themselves who have borne the consequences of employer sanctions enforcement efforts. Employer sanctions investigations have yielded vastly more deportation orders than employer violations. Today, moreover, prosecutors charge workers with fraud and similar criminal violations, even though Congress did not intend criminal sanctions for workers who worked in the United States without authorization. These actions are taken in the name of immigration enforcement, which I believe is overemphasized. A more nuanced reading of the Act reveals a congressional intent to admit and protect several categories of noncitizens, including victims of workplace criminal activity. Specifically, the Act contains a potentially powerful provision that can undo many of the unintended consequences of employer sanctions provisions, and at the same time refocus enforcement efforts on the originally-intended employers who knowingly hire undocumented workers. The U visa provision of the INA--intended to protect victims of crimes, including workplace crimes--can and should provide leverage to workers who seek to uphold or enforce labor and employment rights in the most egregious settings (i.e., those in which the employer is both circumventing the immigration employer sanctions provisions and exploiting noncitizen workers who fear deportation). In this essay, I recommend ways to strengthen the U visa provision so that it can mitigate the unintended consequences of employer sanctions provisions for workers. TABLE OF CONTENTS Abstract Introduction I. Historical Background: Employer Sanctions, Unintended Consequences, and the Employment Structure in Immigrant Workplaces II. The Role of the U Visa Provisions A. The U Visa as a Tool for Law Enforcement B. The U Visa as Humanitarian Relief for Those who are Helpful to Law Enforcement C. The U Visa Protects Workers who Suffer Crimes in the Workplace III. The Fixes: Strengthening the U Visa Provisions A. Ensuring That Victims are not Punished 1. Create a Parallel to T Nonimmigrant Status Protection Prohibiting Criminal Charges Against Victims for Crimes Related to Trafficking 2. Amend Social Security Act to Exclude False Use of Social Security Numbers for Work From Criminal Sanctions 3. Increase the Number of U Visas Available Every Year 4. Make Explicit That Work-Related Crimes are Included in the U Visa Scheme 5. Expand Workplace Related Crimes to Include Wage and Hour Violations, Discrimination, and Collective Bargaining Violations 6. Define Certain Workplace-Related Crimes (e.g., Coercive or Extortionist Practices in the Workplace) as Per Se Evidence of Mental and Physical Abuse in the Regulations and/or Rework the Definition of "Victim" in the Provision B. The Limited Effect of U Visa Fixes to the INA 1. These Fixes Continue in the Tradition of Piecemeal Reform of the Immigration System 2. These Fixes Continue to Perpetuate the Victim-Based Humanitarian Model of Immigration Relief 3. These Fixes Continue to Ignore the Collective Nature of Workplace Exploitation by Focusing Immigration Relief on Individuals Conclusion INTRODUCTION In many ways, immigration regulation today emphasizes enforcement over other aspects of the immigration scheme, such as admissions. …

Lessons Learned, Lessons lost: Immigration Enforcement's Failed Experiment with Penal Severity

Abstract: This article traces the evolution of "get tough" sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as "broken" in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly "broken," policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system's recent shift away from severity and toward harm reduction, this article suggests that the criminal justice system has been more proactive in compensating for its excesses than the immigration enforcement system and discusses the reasons why. TABLE OF CONTENTS Abstract Introduction A. An Immigrant Experience in 1900 B. An Immigrant Experience in 2000 I. Recent History &the Criminal Justice System in the United States A. The Severity Revolution & Mass Incarceration B. Penal Severity Produces a Range of Harms C. "Severity Fatigue" Prompts Ameliorative Reforms II. A Recent History of the Immigration System in the United States A. Dangerous Discourse B. Over-Incarceration of Immigrants C. Civil "Exceptionalism" Within Criminal Law Enforcement and Punishment 1. ICE Detainers Exempt Non-U.S. Citizens From Opportunities Broadly Afforded to Prisoners 2. ICE Detainers Adversely Affect the Provision of Criminal Bail to the Criminally Charged III. Bigger Picture: Importing the Criminal System's Severity Absent its Reforms Conclusion INTRODUCTION A. An Immigrant Experience in 1900 Annie Moore, an Irish girl from County Cork arrived in New York City by boat on January 1, 1892. Departing Ireland from Queenstown on December 20, 1891 aboard the S.S. Nevada, after twelve days at sea Annie arrived at Ellis Island on Thursday evening, December 31st. She would be processed through Ellis Island the following rooming, New Year's Day, which was also Annie's fifteenth birthday. Accompanied by her two younger brothers on a quest to join parents who had already landed in New York, Annie has the distinction of being the first person to pass through the newly opened Ellis Island Immigration Station. (1) On that Inaugural day, 700 immigrants arriving in three separate ships were processed at Ellis Island. (2) At the time, the federal Treasury Department--home of the newly-created federal Bureau of Immigration--was charged with enforcing a modest set of admission qualifications, including proof that the immigrant was not a criminal, a lunatic, a pauper, or diseased. (3) The ship's captain had supplied to the Collector of Customs a manifest listing the names of all the passengers, and an inspector had collected a federal tax of roughly fifty cents per arriving immigrant to pay into a federal immigrant welfare fund. (4) The screening process was administrative and extensive. After leaving the ship and entering the inspection station at Ellis Island, Annie, her brothers, and the 700 other new arrivals walked up a steep stairway leading to the Registry Room in the main building, past doctors who looked over each of them and occasionally wrote something in chalk on their coats: "L" for lame, "H" for heart trouble, "E" for eye problems, "K" for hernia, "G" for goiter, and "X" for mental deficiency. (5) Those who were sick were removed from the line and denied entry. (6) The first examination was for lice, and those infested had their heads shaved. (7) Then, each immigrant had to remove his or her clothing to be examined for skin disease. (8) During the eye exam, each immigrant had their upper eyelid flipped back with a hooked instrument to allow a doctor to examine the eyeball for trachoma, a contagious eye disease. …

Nothing for Something? Denying Legal Assistance to Those Compelled to Participate in ADR Proceedings

Abstract: I. Judicial Treatment of Unrepresented Litigants A. The Traditional Approach B. An Opposing View II. The Unrepresented in Compulsory ADR Settings--The Unavailability of Assistance A. Arbitration B. Court-Annexed Mediation III. The Risks of Leaving Pro Se Litigants Unrepresented in ADR Proceedings IV. Responding to the Risks V. Focusing on Counsel as a Remedy I. JUDICIAL TREATMENT OF UNREPRESENTED LITIGANTS A. The Traditional Approach The courts have been of two minds in their handling of unrepresented litigants. The traditional view has been that those who proceed pro se must look out for themselves. They will be expected to comply with all the rules regulating the litigation process and will not be given special dispensation because of their lack of knowledge or legal skill. The United States Supreme Court relied on this view in its 1975 ruling in Faretta v. California. (1) There, the Court held that a criminal defendant has a Sixth Amendment right to represent him or herself. The Court cautioned, however, that: "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law." (2) This proposition has been reiterated regularly and amplified upon in both criminal and civil decisions since Faretta. In conformity with this view, the Supreme Court has determined that a trial judge, generally, has no obligation to assist pro se litigants. As the Court bluntly put it, there is no "constitutional right to receive personal instruction from the trial judge on courtroom procedure." (3) One of the key justifications for this position is the fear that the trial judge who intervenes on behalf of an unrepresented party is likely to undermine his or her neutrality. Speaking for a five-member majority in Pliler v. Ford, (4) Justice Thomas used the neutrality argument in rejecting a claim that a district judge was obliged to assist an unrepresented litigant with "details of federal habeas corpus procedure." (5) Justice Thomas asserted that such assistance "would undermine district judges' role as impartial decision makers." (6) In the adversarial framework, the most sensible and effective approach when courts are faced with self-represented litigants who seem incapable of managing their cases may not be judicial intervention, but the provision of counsel. (7) Courts have held that the Sixth Amendment to the Constitution requires the appointment of a lawyer for the unrepresented impecunious criminal defendant at public expense whenever there is a possibility of incarceration. (8) On the civil side, by contrast, the courts have recognized no similar right. In Lassiter v. Department of Social Services, a case involving the termination of parental rights, the Supreme Court established a presumption against any right to the appointment of counsel in civil actions. (9) While Lassiter did not literally rule out judicial recognition of such a right, it has been interpreted as having erected a virtually insurmountable barrier to any due process claim regarding civil legal assistance. (10) Although courts have long recognized judicial discretion to appoint counsel in particularly compelling circumstances, (11) that authority suffered a serious blow when the Supreme Court decided Mallard v. United States District Court. (12) The Court held that an unwilling attorney could not be required to accept an uncompensated court assignment to represent a pro se litigant pursuant to 28 U.S.C. [section] 1915(e)(1). The statute allows a court, in its discretion, to make such appointments. The Court thereby reduced the likelihood of the provision of counsel, even as a matter of judicial discretion. B. An Opposing View Were this all there was to say about representation and assistance, the picture would be bleak indeed. The story, however, is not so simple. …

Welcome to Amerizona - Immigrants Out: Assessing Dystopian Dreams and Usable Futures of Immigration Reform, and Considering Whether Immigration Regionalism is an Idea Whose Time Has Come

Abstract: In this essay, we introduce the heuristics of "dystopian dream" and "usable future" to assess competing visions for immigration reform. We apply these heuristics to potential changes to the U.S. immigration system and immigration federalism as reflected in legislative and law enforcement activities, policy proposals, speeches, and scholarship. We consider President Obama's recent revival of Emma Lazarus's "The New Colossus" and aspects of the Schumer/Graham blueprint for comprehensive reform alongside the dystopian dream of immigration reform reflected in Arizona's S.B. 1070 and other state- and local-level efforts to regulate both immigrants and immigration. We also consider side-by-side recent work on immigration and localism and comprehensive immigration reform by urban futurist Joel Kotkin and immigration law professor Dean Kevin Johnson, respectively. In addition to providing valuable insights on the relationship between immigration and economic, social, and cultural dynamism and the prospective parameters of much-needed "truly comprehensive" reform, their work illustrates the ambivalent attitudes about localism within contemporary immigration policy debates, even amongst those who emphasize the fundamentally economic and labor-driven forces behind immigration today. Our bottom line recommendation is that immigration policy formulation and implementation occur on a regional basis, federally created with strong federal oversight and without constitutional disruption of immigration federalism. What we call "immigration regionalism" would move debate beyond the state power versus federal power question that has taken center stage with the Rehnquist Court's so-called "New Federalism." Acting pursuant to the Commerce Clause, the Supremacy Clause, and foreign policy objectives, the federal government would create immigration regions and a governance structure that incorporates representatives of state and local governments, as well as private sector and civil society groups. The regional units would gather and assess data and formulate policy recommendations. In this way, immigration regionalism would split the difference between a purely federal approach and a subnational one as exemplified by states like Arizona and municipalities like Hazleton, Pennsylvania, wherein legislators take dangerous, overreaching self-help measures. An "immigration regionalism" would also feature core commitments and principles and promote salutary outcomes that bring together what is best in Kotkin's and Johnson's respective "usable futures" and that resonates with recent important work on equitable regionalism and rethinking immigration federalism. TABLE OF CONTENTS Abstract Introduction I. "Dystopian Dreams"--"Amerizona" and Reviving "The New Colossus"? II. What Is a "Usable Future" and How Is It Relevant to Immigration Reform? III. Envisioning "Usable Futures"--Kotkin's Immigration-Friendly "New Localism" and Johnson's "Blueprint" for Comprehensive Immigration Reform A. Kotkin's Immigration-Friendly "New Localism" B. Johnson's "Blueprint" for Comprehensive Immigration Reform IV. Toward an "Immigration Regionalism" Concluding Remarks: Which Is The Way Forward? INTRODUCTION "Welcome to Amerizona--Immigrants Out!" (1) We use the phrase "Amerizona" to describe a state of internal disorder represented by Arizona's recently passed S.B. 1070, as well as the flurry of state and local law-making pertaining to undocumented immigrants and immigration reform. We also use it to illustrate one of many possible futures for states, municipalities, and the entire nation so that we may ask the question: is this the future of immigration reform and of American society in this century? In this essay, we introduce the heuristics of "dystopian dream" and "usable future" to assess multiple, competing and contradictory visions of our "immigration future" that are colliding in our lawmaking bodies and in the popular imagination. …

Lawyerless Dispute Resolution: Rethinking a Paradigm

Abstract: Introduction I. An Empirical Examination of Legal Representation in ADR A. The Extent of Legal Representation in ADR B. The Impact of Legal Representation in ADR C. Distinguishing Legal and Non-Legal Representation II. Why Might Attorneys be Needed in ADR? A. The Supreme Court's Perspective on Clients' Need for Lawyers 1. Lawyers Are Most Needed for Their Skills and Expertise 2. Need for Attorney is Greatest When Clients Lack Legal Skills and Knowledge 3. Need for Attorney is Greatest When the Proceeding is Formal and Adversarial 4. Fear that Injecting Counsel into Non-adversarial Process will Undermine That Process 5. Others Share the Supreme Court's Views on When Clients Most Need Attorneys B. Lawyers' Contributions Beyond Knowledge and Skills C. How Lawyers Can Help in ADR 1. Knowledge and Strategy re: Processes 2. Gathering and Presenting Factual Information 3. Researching and Presenting Legal Arguments 4. Empowering Clients 5. Drafting Agreements D. Neutrals Can't Adequately Make Up for the Absence of Representation E. Will Adding Lawyers Undercut the Value of Mediation and Arbitration? F. Non-Lawyer Representatives III. So What is to be Done? A. Courts Considering the Need for Counsel Should Rethink Their Focus on Adversarial Settings B. Policymakers Should Focus on the Need for Representation in ADR, and Not Only in Litigation C. Legal Services Organizations Should Rethink How Lawyers Are Used Conclusions INTRODUCTION Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, (1) most commentators and policymakers have failed to focus on whether participants in mediation, arbitration, or other forms of alternative dispute resolution ("ADR") (2) need legal assistance. (3) Likely, the failure to focus on the possible need for representation in proceedings is based on an often unstated premise that because ADR is non-adversarial, or at least less adversarial than litigation, the need for representation in ADR is necessarily, or at least typically, less than the need for representation in litigation. (4) Since we have not yet come close to providing all litigants with attorneys, some may say we should not waste our time or energy thinking about the possible unmet need for attorneys in ADR processes. Perhaps the failure to focus on the possible need for representation in ADR is also based on a misimpression that most mediations and arbitrations are informal affairs in which attorneys could do little good and might even disrupt the process. (5) This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes. Whereas some may assume that ADR processes are uniformly informal and supportive, it turns out that arbitration, and even mediation, can often be quite formal and adversarial. In arbitration, witnesses are often called, expert testimony presented, and legal arguments made. As for mediation, it too can often involve legal arguments, documents, and presentations by lawyers, clients, and experts. Indeed, as compared to litigation, mediation may give attorneys more opportunity to intimidate their opponent with visual evidence and arguments that the rules of evidence might not permit. (6) If lawyerless ADR is problematic, it is a pervasive issue. …

The Tragedy of Urban Roads: Saving Cities from Choking, Calling on Citizens to Combat Climate Change

Abstract: I. Roads as "Common Goods": The Tragedy of Urban Roads II. A Tragic and Costly Ride III. The Underlying Causes of Road Congestion A. Americans Drive Too Much Because They Do Not Pay Enough! B. I Love My Backyard. Let's Sprawl C. The Financing Structure of U.S. Transportation Policies and Funding: A Public Choice Tale IV. The Regulatory Toolbox A. Price Versus Quantities as Applied to Road Congestion 1. Efficiency 2. Equity and Political Economy B. A Case-Study Analysis 1. Price Instruments: Congestion Pricing Schemes a. London b. Singapore c. New York d. Milan 2. Quantity Instruments a. Tradable Permits i. Singapore Vehicle Ownership Quota Scheme ii. Rome Driving Permits Scheme b. Tradable Mobility Credits i. Car Cash-Out Programs in the United States ii. Genoa V. Law, Economics and the Policy of Urban Congestion A. Land Use Tools B. Public Transportation Policies C. The E.U. Integrated Approach Conclusion I. ROADS AS "COMMON GOODS": THE TRAGEDY OF URBAN ROADS Streets and plazas are, by definition, public space. Public space is a locus of meeting, both physical and virtual, of individual interests that were formed within private spaces. Streets and plazas therefore represent a "common good" exposed like any other common good to the Tragedy of the Commons. (1) In 1968, Garrett Hardin contended that if everybody deems unlimited her or his right to use a common good, its unrestricted demand will ultimately exhaust the finite resource through over-exploitation. Indeed, in tragedies of the commons, users over-exploit a resource and impose mutual externalities upon each other. Tragedies of the commons therefore fall within the broader class of large-group externality problems. The characteristic that differentiates tragedies of the commons from the rest of the class is that self-destructiveness is absent in other large-group externality problems. Pareto superior (2) policy moves have to be different for tragedies of the commons from those undertaken in other large-group externality problems. Governmental intervention or regulation is always needed in tragedies of the commons to save the resource users from themselves and their mutually-imposed harms. Many citizens in western countries believe that they hold an unlimited right to invade streets with their automobiles. Automobiles have taken over public spaces. In turn, these spaces are not only deteriorating from an environmental point of view, but are losing their original function of loci of life and meeting of humans (which is problematic from a social point of view). The vanishing of public spaces is leading to the vanishing of many aspects of urban life: cohabitation, encounters, and the unplanned and uninstitutionalized confrontation of diverse lifestyles, habits, cultures, and stories. These aspects of urban life have historically made cities the preferred place for cultural development and innovation. (3) Alternatively, the automobile projects the characteristics of private life by closing people in steel bodies. (4) Traffic congestion represents the perfect showcase for the tragedy of the commons, a collective action problem in which a resource held in common-urban streets and roads--is subject to overuse and degradation. (5) All users undertake and benefit from driving their own vehicles, congesting urban streets and releasing greenhouse gases ("GHG"s), but bear little of the congestion-related and climate-related costs of their own driving. They have little or no incentive to take into account these externalities in making the decision to drive. (6) Traffic congestion illustrates why mutuality entails the persistence of an externality. All drivers face the same decision environment. …

The NAS Report: In Pursuit of Justice

Abstract: I had the privilege of serving on the Committee on Identifying the Needs of the Forensic Science Community at the National Academy of Sciences (NAS). In February 2009, after more than two years of work, our committee issued a report entitled, "Strengthening Forensic Science in the United States: A Path Forward." (1) As a former federal prosecutor, I believe it is imperative that the recommendations in the NAS Report be implemented. Implementing our recommendations will advance the principal goal of the NAS Report: to assist law enforcement officials in identifying and convicting people who commit crimes. (2) In order to understand fully why I believe law enforcement officials should embrace the recommendations in the NAS Report, it is important to understand how my personal views of forensic science evolved during the two-year period in which I served on the NAS Committee. I believe my own growth may help others, particularly law enforcement officers, to reconsider some of their pre-existing views about forensic science. Before becoming dean of the Cleveland-Marshall College of Law at Cleveland State University in July 2005, I practiced law and tried criminal cases for more than fifteen years. My trial experience included nine years as a federal prosecutor with the United States Department of Justice. While serving in the Justice Department, I had several positions. As an Assistant United States Attorney for the Eastern District of New York, I was Chief of the Organized Crime and Racketeering Section. I then became the First Assistant United States Attorney for the Eastern District of North Carolina. I completed my Justice Department career as Special Attorney to United States Attorney General Janet Reno. In that capacity, I assisted in the successful prosecution of Terry Nichols for his role in the Oklahoma City bombing. (3) As a federal prosecutor, I tried more than twenty criminal cases. As a result, I gained substantial experience preparing and examining expert witnesses from various forensic science disciplines. I questioned chemists who analyzed suspected narcotics, technicians who compared tool marks, fingerprint examiners, and handwriting experts. In the Nichols case, I presented expert testimony regarding the chemical composition of plastic fragments that were found in the rubble of the Murrah Building in order to establish a link between that evidence and large plastic drums that were seized from Nichols. Based on that experience, I began my service on the NAS Committee with two fundamental assumptions about forensic science. First, I assumed that the vast majority of forensic science disciplines were well-grounded in scientific research and scientific methodologies. Second, I assumed that forensic science analysts followed uniform processes and procedures to ensure the accuracy and reliability of their tests and their trial testimony. In short, I had faith in the scientific expertise of the practitioners and in the scientific validity of the tests and methodologies they used. During the two-year period in which I served on the NAS Committee, my views about forensic science generally and some of the specific disciplines changed significantly. I came to realize that there was not nearly enough genuine science to validate many forensic science disciplines. I also came to realize that these deficiencies were impeding law enforcement's efforts to identify and apprehend criminals. I became increasingly concerned that these deficiencies were adversely affecting the fairness of the criminal justice system and undermining the accuracy and reliability of verdicts in criminal cases. In the NAS Report, our Committee identified many of the systemic problems that plague forensic science, and we identified thirteen specific recommendations to address these systemic problems. (4) At the core of all of these recommendations is our collective judgment that the forensic science community needs substantial systemic reforms in order to create a "culture of science. …

Back to katz: reasonable expectation of privacy in the facebook age

Abstract: Introduction I. Government Surveillance and the Fourth Amendment: An Inconsistent History A. The Evolution of the Fourth Amendment in the Face of Changing Technology 1. Katz and its Progeny: Defining Reasonable Expectations of Privacy 2. Modes of Fourth Amendment Analysis B. Cell Phones as Tracking Devices: The Implications of the Third Party Doctrine Under the Fourth Amendment II. "The End of Privacy'--or Not?: The Emerging Split Over Government Surveillance A. Cases Holding GPS Surveillance Does Not Require a Warrant 1. Circuit Courts Finding No Search or Seizure 2. State Courts Finding No Search or Seizure B. Cases Holding GPS Surveillance Requires a Warrant 1. State Courts Lead Off the Pro-Warrant Analysis 2. The Bourgeoning Split: The District of Columbia Court of Appeals Weighs In C. The Intersection of GPS and Cell Phone Surveillance Case Law 1. Background: Cell-Site Technology, Statutory Authority and Case Law 2. Cases Holding Both Prospective and Historical Cell-Site Information Require a Warrant III. Reviving Privacy: Why GPS Surveillance Violates the Fourth Amendment and Should Require a Warrant A. "The Nature of the Act": Why the Installation and Monitoring Capabilities of GPS Technology Must be Viewed Together B. GPS Surveillance Constitutes a Seizure Under the Fourth Amendment C. GPS Surveillance Constitutes a Search Under the Fourth Amendment 1. Exhibiting Subjective Expectations: The Difficulty of Katz's First Prong i. The Probabilistic Model ii. The Mosaic Theory 2. What Would Facebook Say? How Society Governs the Second Prong of Katz i. The Effect of Public Awareness and Use of GPS Technology ii. Recent Privacy Invasions Produce a Demand for Greater Control D. One Standard for All: Preserving Consistency in the Warrant Requirement Conclusion INTRODUCTION On October 3, 2010, during a routine trip to the auto repair shop, a California student discovered a strange device attached to the back of his Ford Lincoln LS Sedan near the exhaust pipe. (1) The mechanic removed the device and later that day the student's friend posted photographs of it on the popular website Reddit.com, asking users, "[d]oes this mean the FBI is after us?" (2) His post continued, "[I] am pretty confident it is a tracking device by the FBI but my friend's roommates think it is a bomb ... any thoughts?" (3) The Reddit.com users' responses suggested that it was indeed a tracking device--specifically, a Global Positioning System (GPS) device called the Guardian ST820, manufactured for law enforcement and military use only by a company called Cobham. (4) Surely enough, the FBI showed up at the student's door just two days later asking for their device back. (5) The student obliged and the agents asked him several questions, indicating during the conversation that they had been tracking him for three to six months. (6) In the end, they let him go with a handshake. No need to call your lawyer, they reassured him: "Don't worry, you're boring." (7) Meanwhile, the users of Reddit.com reacted with a mix of surprise and disgust at the student's discovery of a tracking device on his car. "Is it legal for the police/FBI to track anyone they feel like in the U.S.?" (8) "That's more than a little terrifying." (9) "This is officially the most insane thing I've ever seen on Reddit." (10) As a matter of fact, several months earlier the Ninth Circuit Court of Appeals held that law enforcement could attach such a device to a car while it was parked in a driveway and monitor it for several months without a warrant. …

The promise and limits of local human rights internationalism.

Abstract: Introduction: From the International to the Local I. U.S. Federal Government as a Reluctant and Incomplete First Mover A. Objecting to the Federal Integration of Domestic Human Rights B. Linking the Political to the Structural and Procedural II. The Promise and Peril of Cities A. Typology B. Optimizing the Intersection of Political and Structural 1. Maximizing Political Homogeneity 2. Avoiding Federalism and Foreign Policy Concerns 3. Enhancing Warm Glow and Direct Gains 4. Utilizing Structural Advantages C. Limitations 1. Structural a. Federal Constitution b. State Limits 2. Limited Spillover: State, Federal, and International Conclusion INTRODUCTION: FROM THE INTERNATIONAL TO THE LOCAL For many people across the globe, human rights remain aspirational. American politicians and diplomats often speak of the need to improve human rights abroad in places such as China, Sudan, and North Korea. (1) Popular political discourse recognizes much less often the need to turn inward and improve our own government's human rights behavior, be it federal, state, or local. Despite the lack of mainstream support, for the last several years, NGOs and academics have increasingly criticized the failure of domestic actors to successfully bring human rights home. These critiques have given way to a second stage in the human rights struggle--the articulation of justifications, structures, and specific policies for implementing domestic human rights. This piece is the fourth of a multi-part series of papers that takes a supportive but also critical approach to the project of bringing international law home. The first piece, Take the Long Way Home: Sub-Federal Integration of Unratified and Non-Self-Executing Treaty Law, (2) documented the existence of apathetic and intransigent federal actors and identified the role of sub-federal actors such as states and cities in implementing unratified and non-self-executing treaty law. In so doing, that paper acknowledged the significant federal limits on such behavior and discussed the limited role of sub-federal actors in promoting federal ratification. It also hypothesized that existing local and regional efforts on the Kyoto Protocol and the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") would serve as models for expanded sub-federal behavior. The second piece, The Non-Legal Role of International Human Rights Law in Addressing Immigration, (3) contended that even unratified international human rights law influences non-binding regional processes, contributes to the development and dissemination of best practices, and helps produce and codify a human rights discourse. I looked outside of formal international law structures to identify ways in which human rights can move from international law into the state. This Article investigated regional consultative processes and Italy's immigration reforms as examples of state actors undertaking voluntary compliance with human rights norms outside of traditional pathways. Most recently, Human Rights Impact Statements: An Immigration Case Study (4) proposed that domestic government actors, including states and localities, undertake human rights review of pending legislative and agency actions. I used the highly successful and much copied model of environmental impact statements as a starting point, but looked also at instances where government actors used such reviews to conduct more qualitative analyses. This Article addressed some design issues raised by such a proposal including: (1) which policies should be subject to assessment; (2) which governmental entities should conduct them; and (3) what consequences ought to flow from a human rights assessment or impact statement. Though I reached no conclusive recommendations, I noted the possibility and benefits of state and local experimentation in working through some of these design questions. …

Can Urban University Expansion and Sustainable Development Co-Exist?: A Case Study in Progress on Columbia University

Abstract: Introduction A. General Sustainability Measures B. Sustainability and University Expansion: The Developing Columbia University Experience I. Sustainability, Urban Areas, and Sustainable Development in Context A. Towards Defining Sustainability B. Urban Sustainability II. The Sustainability Roles of the Institution of Higher Learning A. Columbia as a Sustainable Educational Institution 1. Sustainability Curriculum 2. Green Campus: Learning in a Sustainable Environment 3. The Expansion Project: Modernization of Construction B. A Modern Campus--Bigger is Better? III. Localizing Sustainability: Identity in Sustainable Communities and the Dilemma of Urban Expansions A. Public Participation and Sustainability 1. Do Universities, and Columbia in Particular, Have a Special Obligation to Pursue Meaningful Community Relationships? 2. Two Plans for Columbia's Expansion 3. Public Participation Through a Community Benefits Agreement 4. Public Engagement and the Use of Eminent Domain B. Displacement and Gentrification Conclusion INTRODUCTION The notion that our resource decisions should account for the needs of today without crippling future generations in their ability to make their own resource decisions (1) has captured models of corporate responsibility, land use planning, architecture, and even market assessments. Yet sustainability is not limited to environmental quality and natural resources. The concept of sugtainability and the approach that it embodies extends throughout our social and economic institutions and applies to, among other things, housing and transportation policies, agricultural practices and food production, public health and medicine, national and international governance, and education. Sustainability is becoming a critical measure of assessment for government, corporate, and business decision making. A. General Sustainability Measures The reason that sustainability has become so popular is undoubtedly related to the breadth of its governing principles. Sustainability is reflected, among other things, by the inclusiveness that can result from open and engaged public dialogue, in its resoluteness in seeking an equitable distribution of the benefits of resource use, and through the pluralism that follows the process of reconciling otherwise competing goals and perspectives. Sustainability is immediate and generational, consumptive and conservationist, and local and global. It strikes a chord of key quality of life factors in the public arena, and optimal long-term viable business considerations for the private sector. The application of sustainability is no simple task. (2) The variability in what constitutes sustainability for different projects (e.g., geothermal power, subdivision, or timber sale), in different regions (depending on climate, population, and character), and in different settings (rural, suburban, or urban), appears to undermine the likelihood of identifying any universally applicable principles or standardization in application. Moreover, the notion that the traditionally competitive goals of economy, environment, housing, food, and population can be reconciled raises suspicions about the practicability of pursuing sustainable policies and projects. (3) Although such suspicions deserve consideration, it is important to note that sustainability is best understood as a process and a framework that acquires its meaning in particular contexts. B. Sustainability and University Expansion: The Developing Columbia University Experience This Article employs sustainability as a framework to analyze the recent physical expansion plans of Columbia University for the purpose of illustrating the complexities that arise in urban development and higher education practices, as well as the problems of trying to simultaneously implement both. …

Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System

Abstract: The United States has long benefited as a leader in attracting the "best and brightest" immigrants. However, the world has changed since the U.S. immigration system's last major modification in 1990. The United States is no longer the primary destination for many talented immigrants. Many other nations have enacted immigration systems meant to attract the best and brightest immigrants. These immigration systems are often point-based and allow potential immigrants to quickly determine eligibility. By comparison, the U.S. immigration system is slow and complicated. Many now question the United States' ability to attract talented immigrants. This Article first examines how other national immigration systems entice the best and brightest immigrants. It then examines the current U.S. immigration system and its evolution since the Immigration Act of 1990. Finally, the Article suggests how the United States can improve its immigration system to continue to attract talented immigrants. ********** [Immigrants] contribute greatly to the vitality of the economy. They are highly motivated, willing to work and venture, and bring in fresh insights. Immigrants have made a disproportionate contribution to dynamism of the economy because of these characteristics ever since our forefathers first landed in the New World. (1) TABLE OF CONTENTS Abstract Introduction I. The Growing International Competition for Talent A. Canada's Point System B. The European Union's Blue Card C. The United Kingdom's New Point Scheme D. Indian and Chinese Incentive Programs II. Current U.S. Immigration Policy A. The EB-1-1 and EB-1-2 Immigrant Status 1. What do the Regulations Mean? 2. The Weinig Approach 3. The Circular Reasoning Approach 4. The Proposed 1995 Regulations 5. Kazarian v. U.S. Citizenship and Immigration Services. 6. Do the Regulations Reflect IMMACT90's Congressional Intent? 7. The Persistent Confusion B. National Interest Waiver 1. The INS Attempts to Define "National Interest" 2. In re New York State Department of Transportation 3. Does NYSDOT Reflect Congressional Intent? III. Recommendations A. The U.S. Point System 1. A Lottery for Highly Skilled Immigrants? B. Should a U.S. Ph.D. Diploma Lead to Permanent Residency? C. Bring Consistency and Clarity to the EB-1-1 and EB-1-2 D. Return Flexibility to the National Interest Waiver Conclusion INTRODUCTION The United States has long sought to attract the "best and brightest" immigrants. (2) These highly talented immigrants have contributed to the economic, scientific, and cultural growth of the United States. (3) Increasingly, however, many other countries are taking action to attract the best and brightest to their own country. This increased international competition is challenging our nation's continued ability to attract these talented immigrants. The most recent significant modification to the U.S. employment-based immigration system was the Immigration Act of 1990 ("IMMACT90"). (4) IMMACT90 created a five-tiered employment-based immigration system that includes three distinct categories to ensure that the best and brightest have a meaningful opportunity to gain permanent residency in the United States. (5) The first category is for individuals with extraordinary ability in the sciences, arts, education, business, or athletics (colloquially referred to as "EB-1-1" status). The second category is for outstanding professors and researchers ("EB-1-2" status). The third category is the national interest waiver ("NIW"), which is for those individuals whose employment is in the United States' national interest. …

Entering the Mainstream: Making Children Matter in Immigration Law

Abstract: Myths that parents are afforded easy and unwarranted pathways to U.S. citizenship through their U.S. citizen children and that children receive privileged treatment in U.S. immigration law stubbornly persist in public discussion surrounding possible immigration reform. Testing these myths, this essay examines immigration law's treatment of children in three contexts: (1) as lawfully immigrating dependents of adults; (2) as immigrants on their own or outside the structures of immigration law; and (3) as individuals empowered to generate immigration rights in others. In each of these contexts, analysis reveals that the failure of immigration law to advance, or in most instances even consider, the interests of children places it far from mainstream values and legal conceptions regarding children. In particular, immigration law fails to fully recognize children as individuals with independent rights and interests, attaches punishing and lasting legal consequences to children for choices of adults in their lives or for choices that children make prior to reaching the age of discretion, and effectively and pervasively precludes children from generating immigration rights in their parents or others. At the least, this deeper understanding of the nature of immigration law's marginalization of children serves as a counterweight to calls for reform based on false characterizations of current law. Ironically, myths about the treatment of children in immigration law serve as an effective template for simple, yet fundamental reforms that would bring U.S. immigration law closer to mainstream values and approaches regarding children. The essay suggests three simple, yet fundamental reforms that would not only bring the law closer to mainstream values, but also closer to the place where many seem to think it is already. Any reform agenda that fails to address the role of children in immigration law will not prevent accepted societal and demographic pressures from replicating the current situation in which millions find themselves unable to reconcile their family relationships and responsibilities with the dictates of immigration law. Children matter, and it is time they mattered in U.S. immigration law. TABLE OF CONTENTS Abstract Introduction I. Children in Immigration Law A. Children as Dependents and Derivatives B. Children as Immigrants C. Children as Generators of Immigration Rights in Others II. Entering the Mainstream A. Expanding Notions of Family B. Removing Punishment for the Acts of Parents C. Children as Generators of Immigration Rights Conclusion INTRODUCTION Listening to the national discussion on immigration, it would be easy to conclude that children hold a privileged position in U.S. immigration and nationality laws. Children, we are warned, enable their parents to avoid deportation and obtain lawful immigration status in the country. Indeed, it is common to hear "frustration that pregnant women could cross the border from Mexico illegally, then rely on their American citizen newborns to put them immediately on a path to citizenship." (1) And, as some voices unease about children "anchoring" their parents to the United States, other voices express contrary concerns about parents who are not grounded in the United States and "drop and leave," raising their U.S. citizen children outside the United States where they may develop allegiances counter to U.S. interests. (2) Certainly such arguments regarding the citizenship and immigration rights of children have long been part of a loud political discourse and predictably serve as an effective wedge issue in the shifting winds of electoral politics. (3) Yet even setting aside the most extreme distortions, the discussion of children and immigration is characterized by persistent myths about the treatment of children and their parents in U.S. law. Whatever position is taken on policy issues, it is common to characterize the rights and role of children in matters of nationality and immigration as expansive. …

“utterly ineffective”: do courts have a role in improving the quality of forensic expert testimony?

Abstract: Introduction: Forensic Science and the National Research Council Report I. The NRC's Reasons for Giving the Courts Almost No Role in Improving Forensic Expertise II. Why Are Courts So Lenient in Admitting Expert Forensic Evidence? A. Saks' Explanation B. Contextual Approach to Knowledge C. Information About the Particular Case III. What Role Might Courts Play? Conclusion INTRODUCTION: FORENSIC SCIENCE AND THE NATIONAL RESEARCH COUNCIL REPORT For at least three decades we have witnessed an academic critique of the quality of forensics evidence as it is employed in criminal prosecutions. (1) Although the critique has proceeded at many levels, at its core is the fact that many forensic science fields have failed to conduct the research necessary to test the reliability and validity of the methods and techniques forensic witnesses employ to support their courtroom testimony in criminal cases. The critique became more vocal and more persistent with the United States Supreme Court admissibility decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., (2) General Electric v. Joiner, (3) and Kumho Tire Co. v. Carmichael. (4) In the early years following Daubert, it sometimes seemed that the forensic expert community simply didn't understand the academic critique. (5) For example, D. Michael Risinger reports that during a 1996 discussion, document examiners made the following comments: "Only we who do it can know that what we say about it is true," and "[they] went after our weak point: no data." (6) Later, the expert community developed more elaborate justifications for its practices and its lack of interest in conducting research designed to test the validity and reliability of its conclusions. Michael J. Saks and Jonathan J. Koehler have persuasively argued that at the heart of this set of justifications are the concepts of individualization and uniqueness. (7) As Simon Cole notes, individualization is understood to mean that it is possible to narrow the potential sources of a forensic trace "to a single object in the universe," and this sort of individualization is itself supported by the assumption that each forensic object (a fingerprint, a spent bullet, a bite-mark, a signature) is unique. (8) Combined, these assumptions lead to assertions such as the following: "And we profess as fingerprint examiners that the rate of error is zero. And the reason we make that bold statement is because we know based on 100 years of research that everybody's fingerprints are unique, and in nature it [sic] is never going to repeat itself again." (9) Empirical investigations by outside experts on the ability of forensic experts to make such assertions are claimed to be unnecessary. (10) It is against this backdrop that the National Research Council (NRC) published its Report, Strengthening Forensic Science in the United States: A Path Forward. The Report clearly sides with the critics. The Report's summary makes the following observation: "With the exception of nuclear DNA analysis ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." (11) The Report offers a series of recommendations designed to change this state of affairs. Its first recommendation is the establishment of a National Institute of Forensic Science that would be independent from the existing forensics community and would have an advisory board with expertise in multiple disciplines. Its third recommendation is a call for research to assess accuracy, reliability, and validity in the forensic science disciplines. (12) What is interesting is that the recommendations are neither directed at the courts, nor do they call on the courts to use the admissibility standards developed in Daubert and state court analogs to tighten admissibility standards. …

Compassionate Immigration Reform

Abstract: Ideals of comprehensive immigration reform have been co-opted by advocates of border and internal security and enforcement, leaving behind our aspirations as a compassionate nation of immigrants. Mindful of the tension between blind adherence to the rule of law and the goal of empathetic immigration policy, I suggest a refraining of comprehensive immigration reform as compassionate reform and sketch the details of this transformative policymaking approach. Focusing on the life-threatening journey of undocumented immigrants and the perils they and their families face once inside the United States, I argue for a time-out on deaths at the border and on workplace immigration raids that split families apart. While supporting the expanded pathways to citizenship fostered by the federal DREAM and AgJOB Act proposals, ultimately I urge a return to the good neighbor Western Hemisphere exemption to immigration limits that existed until 1965. Realizing that the mood of the country has turned against immigrants, particularly those from Mexico, I conclude with suggestions as to how U.S. residents and policymakers might acquire empathy and thus the will to embrace compassionate immigration reform. ********** To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness. --Howard Zinn TABLE OF CONTENTS Abstract Introduction I. Compassion and the Rule of Immigration Law A. Immigrant Safety B. Welfare of Immigrant Families C. Rewarding Immigrant Initiative D. Honoring a Good Neighbor II. Restoring Compassion for Mexican Immigrants INTRODUCTION The catchphrase "comprehensive immigration reform" has come to mean proposals that, among other goals, confront the status of undocumented immigrants presently in the United States, authorize additional temporary visas to address any labor needs that may arise, and better enforce our borders. Of these, in recent years border enforcement has gained the most traction in political circles. As evident in the 2008 presidential campaign, most hopefuls anchored any mention of comprehensive immigration reform in the bedrock of enforcement prerogatives, nearly always leading with rhetoric of "we've got to secure the borders first." (1) For example, Democratic candidate Hillary Clinton's website criticized then-president Bush for failing to allocate sufficient resources to protect the borders, while Barack Obama's campaign website urged sending "additional personnel, infrastructure and technology" to the borders. (2) Consistent with the prevailing enforcement emphasis, both Senators Clinton and Obama voted for the Secure Fence Act of 2006. (3) The main difference in immigration rhetoric among these politicians was that some Republican candidates, notably Tom Tancredo, offered so-called comprehensive immigration reform proposals rooted solely in enforcement. Because Tancredo remained "100% opposed to amnesty," (4) his answer to addressing the millions of undocumented workers in the United States apparently was mass deportation through vigorous internal enforcement. In essence, first we secure the borders, and then we secure them some more. As discussion of immigration reform moved toward enforcement, that debate shifted to our southern border, leaving Mexican immigrants to represent the face of immigration. Arizona, the territory of Minutemen maneuvers, Sheriff Joe Arpaio, and Senate Bill 1070, is the new epicenter for U.S. immigration policy. Given the dominant role of Mexican immigration in numbers (5) and perception in the immigration debate, I offer my suggested reforms with Mexican immigrants foremost in mind. Still, many of my proposals extend to and resonate with other immigrant groups. As the expression goes, "[s]how me your friends and I'll tell you who you are. …