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An Unreasonable Presumption: The National Security/Foreign Affairs Nexus in Immigration Law
Get PDFFor well over a century, immigration has occupied a constitutionally unique niche within US public law. Noncitizens in immigration proceedings are routinely denied constitutional guarantees, including due process and equal protection, that apply in virtually every other legal setting. Courts justify their extraordinary deference to the government by invoking a presumptive nexus between immigration, on the one hand, and national security and foreign affairs, on the other. Critically, courts cite the national security/foreign affairs nexus regardless of whether the specific regulation or enforcement action under review has any plausible bearing on those interests. This article is the first to demonstrate empirically that immigration law’s presumed national security/foreign affairs nexus rests on a fiction. Using data available from the Executive Office of Immigration Review, we analyzed the case files of more than six million immigration cases adjudicated between 1996 and 2021. Our analysis of the approximately 9.7 million charging codes entered in those cases indicates that the government identified a national security or foreign affairs issue as a basis for removal in just .013 percent of cases. These empirical findings have important implications for the future of judicial review in immigration cases. If the proportion of cases that purportedly implicate national security or foreign affairs is, as our data indicates, vanishingly small, it makes little sense for this exceedingly rare class of cases to dictate the standard of judicial review for the 99.987 percent of immigration cases that do not involve those exceptional governmental interests. Instead, reviewing courts should approach immigration law for what it is: a miscellany of statutes, regulations, and enforcement actions that concern civil violations of immigration law, the removal consequences of criminal convictions, labor, public health and welfare, and, very infrequently, national security or foreign affairs. Under such an approach, the vast majority of immigration regulations would be reviewed under the same substantive, judicially enforceable constitutional norms that apply in nonimmigration legal settings. In the context of detention, for example, noncitizens who are detained pursuant to removal proceedings would be entitled to the same due process rights as criminal suspects or allegedly dangerous mentally ill persons. The government would retain broad latitude in immigration cases that involve bona fide national security or foreign affairs interests, but it would no longer enjoy the categorical judicial deference that it currently receives as a matter of course
Commercial Law Harmonization: The Role of the United States
Get PDFThe modern field of transnational commercial law harmonization began in the United States in the mid-1960s; the international basis of that began in the mid-1940s. Before that, a limited number of areas of private international law (PIL) had active participation of US interests, such as maritime law. US participation internationally effectively began in the middle 1960s. Developments parallel to commercial law have been significant in the areas of applicable law, jurisdiction, commercial arbitration, family law, and other fields – all important areas of transnational law, but beyond the scope of this symposium. Each of these areas of law, while affecting the overall field of international private law, has had dynamics particular to it
Banking-as-a-Service: FinTechs Walking the Regulatory Perimeter
Get PDFFinancial technology (fintech) has ushered into today’s financial markets a wave of innovations that have revolutionized the way financial services are rendered and consumed. One such transformation is Banking-as-a-Service (BaaS): a partnership model through which nonbank businesses offer federally regulated banking products directly to consumers. By disintermediating the banking value chain, BaaS is democratizing access to financial services and lowering barriers to entry for many unbanked and underbanked individuals. These initiatives bring with them a number of concerns—such as data privacy risks, new forms of surveillance and discrimination, and economic instability—that are augmented by a systemic deficiency in regulators’ ability to understand and respond to complex and evolving fintech-related risks. Specifically, the United States’ overlapping state-federal regime of financial regulators has created a fragmented network of authority, exposing new and enticing opportunities for service providers to organize their activities outside the purview of regulators. Furthermore, the modern regulatory infrastructure was designed in the wake of the 2008 financial crisis and focuses almost exclusively on the propagation of risk within and among banks and large financial institutions. This Note argues that this system is ill-equipped to address BaaS‑generated risks and proposes that a solution may be found in a redefined regulatory perimeter
Reimagining Financial Whistleblower Protection: A Proposal for Stronger Protection Under the Sarbanes-Oxley Act
Get PDFWhistleblowers occupy a unique place in American society. They operate in nearly every sphere of modern life, exposing unlawful conduct by financial institutions, technology companies, and government entities, just to name a few. When whistleblowers encounter retaliatory behavior, they are faced with an uphill battle to hold their employer accountable. This note discusses the circuit split regarding whistleblower protections under the Sarbanes-Oxley Act, which was recently granted cert by the US Supreme Court. Until recently, no circuit required whistleblowers suing their employers for engaging in retaliatory behavior to show that the employer acted with retaliatory intent. The Second Circuit broke from this consensus, requiring a showing of retaliatory intent and making it more difficult for whistleblowers to hold their employers accountable. This note proposes changes to Sarbanes-Oxley’s whistleblower protections using the Whistleblower Protection Act, which employs broader and more concrete language in defining the standard for showing that an employer engaged in retaliation. It proposes both broadening Sarbanes-Oxley’s list of prohibited conduct and adding more concrete language to guide courts in determining whether an employer used an employee’s protected whistleblowing conduct in making an adverse employment decision. In doing so, this note paves a path more straightforward than a 2024 Supreme Court decision will likely be able to accomplish
Addressing the Toll of Truth Telling
Get PDFAcross the United States, there are mounting and renewed calls for applying restorative justice principles to deeply entrenched societal ills based on reconciliation, namely in the form of truth and reconciliation commissions (TRCs). Amid our great mobilization, we would be wise to pause, contemplating lessons from lived experiences. Since the 1970s, approximately thirty-five national truth commissions have taken place. In South Africa, Canada, Sierra Leone, and many processes, TRCs have proven adept at cataloguing approved instances of victim and survivors’ (VS) stories and elaborately contextualizing conflict through a new historical lens. Despite the transformative potential of TRCs, they are still part of transitional justice programming and, therefore, unavoidably political endeavors. In seeking truth, we must remember – those who compose the process also control the narrative. When under the control and direction of a state with truly “therapeutic” aims, a TRC can be a powerful tool to reinforce citizen welfare and state legitimacy. Conversely, truth-seeking mechanisms also contain a range of discursive limitations that severely constrict the nuance of individual and collective truths. Additionally, although science and experience have proven that truth telling has some positive consequences for VS of human rights violations, developing scientific and empirical data dictate proceeding cautiously. The process of cataloguing truth according to certain temporal, categorical, and colonial framing limitations, for example, can affect individual agency. Through the process, identities and experiences can be fragmented, frozen in a nondynamic moment in time made to fit into a hegemonic reconciliatory narrative on the event. This phenomenon denies individuals the ability to express a full range of emotions, which is often necessary to their healing process. Lessons learned from previous TRCs establish an increased responsibility to consider where previous processes have fallen short and how to amend them. To maximize the healing potential of an American TRC, thoughtful planning must be directed to both the “Truth” and the “Reconciliation” components of the TRC process. This article is forward focused with an eye on remedial analysis and an emphasis on the “Truth” component of TRC process. As we work to refashion our Country’s future, we must look beyond the political and legal, and join with other disciplines—especially psychology—and be led by the people most affected, if we hope to achieve meaningful reconciliation. This article asks us to consider the professional obligations owed to those who have been (and continue to be) harmed and to develop a collaborative process that places VS needs and voices at the center of TRC programming. Community engagement and design at all levels is imperative so that spaces for truth telling promote dignity and allow for a full array of emotional expression. There needs to be a commitment to a TRC process that recognizes that the harms, which must be healed, are not located in the distant, “historical” past but are alive and ongoing. Due to the evolving evidence of the harm TRCs can cause, any new process has an obligation to provide meaningful benefits to participants
No Need for Speed: The Inherent Unreasonableness of High-Speed Police Chases and a New Approach to Excessive Force Litigation
Get PDFHigh-speed police chases are a deadly tactic used and abused by the police to apprehend motorists who flee from traffic stops. Police departments around the country routinely escalate stops for mere traffic infractions into dangerous high-speed pursuits, resulting in death and injury to those involved. Moreover, Black Americans represent a disproportionate number of those stopped, chased, and killed by police, making high-speed chases, like many police-citizen encounters, highly racialized. However, for motorists injured by high-speed chases, maintaining a successful lawsuit against the responsible officers remains incredibly difficult under current excessive force jurisprudence. Although police department policies limiting when and why officers may initiate a pursuit might mitigate the abuse of this police tactic, heightened judicial scrutiny of high-speed chases is what is needed to provide survivors of police brutality with meaningful redress for the harm they have suffered. This note calls for a shift in excessive force jurisprudence that would allow plaintiffs to argue what is plainly true: that it is inherently unreasonable for officers to engage in high-speed pursuit
Gang Accusations: The Beast That Burdens Noncitizens
Get PDFThis article examines evidence that the government presents in deportation proceedings against young men of color to prove that they are gang members. The gang evidence results in detention, deportation, adverse credibility decisions, and denial of discretionary relief. This article examines the gang evidence through the lens of the law’s use of presumptions and the corresponding burdens of proof at play in immigration proceedings. The immigration burden allocations allow adjudicators to readily accept the harmful presumption contained in the gang evidence—that urban youth of color are criminals and likely to engage in violent crime associated with gangs. The article seeks to explain how this racist assumption led to the creation of a gang database and proposes an evidentiary presumption that the gang evidence is not reliable, in order to specifically instruct the immigration adjudicator to reject the presumption society has put in place about urban youth of color and criminality. In this way, the article tracks common interests of critical race theory, by explaining how US society has subordinated people of color in the creation of gang databases, and seeking not only to understand, but to change this bond between law and racial power
Background Noise: Lessons About Media Influence, Mitigation Measures, and Mens Rea from Argentine and US Criminal Cases
Get PDFThis Article reflects on the influence that intense media coverage can have on high-profile criminal cases and considers ways to reconcile defendants’ right to a fair trial with press freedom, comparing approaches and cases from Argentina and the US. The Article begins by discussing the tension between journalists’ and defendants’ rights (Part I). It then surveys how the US seeks to mitigate media influence (Part II). After this, it notes two recent Argentine mitigation measures (Part III). Next, it conducts a legal analysis of the Fernando Báez Sosa case, blaming media pressure for errors in the judgment and then proposing a different resolution based on recent developments in the doctrine of extreme recklessness (Part IV). Finally, the Article identifies how US criminal proceedings are (similarly and dissimilarly) susceptible to media pressure, considering the Kyle Rittenhouse prosecution and the campaign to pardon Daniel Perry (Part V)
