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The Cost of Cutting Corners: Jurisdictional Implications Flowing from Removal Proceedings Commenced by a Defective Notice to Appear
Get PDFA Notice to Appear (NTA) in removal proceedings is a written notice served on noncitizens that, among other things, alerts them that they must appear in immigration court for a hearing. In 2018, contrary to statute and common sense, the Department of Homeland Security (DHS) admitted to issuing almost all NTAs without the accurate date, time, and place of the initial proceeding. In response, the Supreme Court, in Pereira v. Sessions, clarified that an NTA without the date and place of the hearing is statutorily defective and cannot be used to bar noncitizens from cancellation of removal. However, DHS circumvented Pereira by issuing NTAs with “fake dates” and using a two-step notice process, whereby a second notice with the date and place cured an initial defective NTA. In April 2021, the Court sought to address the problem of the issuance of defective NTAs and its consequences once and for all. In Niz-Chavez v. Garland, the Court held that DHS must serve a “single and comprehensive notice,” with the date and place of the proceeding, on noncitizens to trigger the stop-time rule for purposes of cancellation of removal. This note argues that the Niz-Chavez holding has implications beyond the stop-time rule and soundly contests the jurisdiction of immigration courts when they have commenced proceedings with a defective NTA. Removal proceedings should be terminated because Niz-Chavez (1) foreclosed the two-step notice process; (2) affirmed the supremacy of a statute’s clear text over self-serving regulations; and (3) recognized the serious and far-reaching implications of commencing removal proceedings against a noncitizen. To further clarify this stance, this note proposes an amendment to the Immigration and Nationality Act confirming the statutory requirements for the issuance of NTAs and asserting that jurisdiction only vests in immigration courts if those statutory requirements are met. The purpose of this amendment is to prohibit the government from changing the procedural and jurisdictional framework of removal proceedings to serve its shifting interests, thoughtlessly ruining the lives of noncitizens and their families
What Are Victim Impact Statements For?
Get PDFIn Payne v. Tennessee, the US Supreme Court upheld the admission of victim impact statements (VIS) on the ground that they provide valuable information to the sentencer. In the three decades since, two additional rationales for VIS have become ascendant: most prominently, a therapeutic rationale, and more recently, a public education rationale. In this article, I expand upon my critiques of the informational and therapeutic rationales in light of a growing body of empirical evidence about how VIS affect both sentencers and crime victims. Focusing on the powerful and viral VIS delivered at the Larry Nassar guilty plea hearings and the Brock Turner trial, I consider whether VIS can be defended as a vehicle for informing the public about the impact of crime—particularly crimes that are underenforced or poorly understood. I conclude that ultimately the current VIS regime arises from and reinforces an individualistic model of crime that is not well-suited to illuminating the scope or consequences of criminal behavior, particularly in multi-victim cases like those of Larry Nassar. More generally, I argue that there are fairer and more robust models for achieving the informational, healing, and educative goals that victim impact statements are meant to serve, and that these models may well require decoupling those goals from the narrow ambit of the criminal justice system
The Victim/Offender Overlap and Criminal System Reform
Get PDFVictimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important topic for this symposium on “The Role of the ‘Victim’ in the Criminal Legal System.” This blind spot, and the concomitant failure to address the root causes and cyclical nature of violence, perpetuates a racialized narrative of individual culpability and a stark moral binary between those who harm and those who are harmed, while also impeding meaningful change. In this article, I posit some explanations for the persistence of the legal construct of the victim/offender binary, before arguing that the overly reductionist, and arguably false, binary masks the complexity of violence, as well as its often cyclical nature. Recognizing the overlap exposes the normative and contingent nature of what is criminalized, complicates traditional rationales for punishment, including retribution and deterrence, and strengthens calls for a different approach to preventing and redressing harm
WHEN SEXUAL ASSAULT BECOMES INCIDENT TO MILITARY SERVICE
Get PDFFor seventy-two years, federal courts have barred military servicemembers who are survivors of sexual assault from recovery under the Federal Tort Claims Act (FTCA). The Feres doctrine, promulgated from the Supreme Court case Feres v. United States, became the foundation for federal courts’ decisions that sexual assault is incident to one’s service in the military. Courts’ over-deference to the military has enabled a system that turns a blind eye to perpetrators and abusive environments on bases. However, the Ninth Circuit recently turned the tide in FTCA cases, holding in Spletstoser v. Hyten that military sexual assault survivors should be permitted to recover damages. Thus, this Note calls for all federal courts to bolster the analysis in Spletstoser v. Hyten and implement a bright-line rule that sexual assault is not incident to one’s military service, arming survivors with the resources needed to hold their perpetrators accountable and promote a healthier environment in the military
Tailspin: Examining the Distortive Effects of the Airbus-Boeing Duopoly on Trade Dispute Resolution Between the United States and European Union
Get PDFThis Note surveys the perverse effects of the Airbus–Boeing dispute on international trade, examining how this unique and unprecedented duopoly challenges WTO agreements regarding state assistance to domestic manufacturers of large civil aircraft. This trade dispute has precipitated significant consequences for industries unrelated to aircraft manufacturing on both sides of the Atlantic. Theoretically, the WTO’s dispute resolution framework is designed to maintain an undistorted status quo between member states. The case of Airbus–Boeing, however, has shown that a duopoly conflict masquerading as a WTO dispute leads to escalating tariffs with substantial repercussions. This is the costliest dispute in the history of the WTO and has seriously hampered the goals of member states to ensure non-politicized free trade. Moreover, through its outsized influence on domestic and foreign policies, the transatlantic duopoly has contributed significantly to the systematic unraveling of the WTO as an effective arbitration body for international trade. Even as both blocs promise renewed collaboration in response to third-party threats, the cloud of tariffs and impotent WTO tribunals may be turbulent for the multilateral trading system
Reforming Copyright or Toward Another Science? – A MoreHuman Rights-Oriented Approach under the REBSPA inConstructing a “Right to Research” for Scholarly Publishing
Get PDFThis article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA), as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. A substantial part of the discussion examines whether and, if so, in what ways, the REBSPA gives rise to a “right to research”—also in a sense that legally obliges the international community of states toward states with fragile science systems, or in an extraterritorial sense that would require the right to be obeyed beyond borders—and it then enquires what the normative implications of such a right would be for copyright and science. It is submitted that current official interpretations of the REBSPA reveal flaws and gaps. Here, the REBSPA is accordingly reinterpreted in accordance with what is called a more human rights-oriented approach, its guiding concept being that of “adequacy for science.” This article finds that, while existing copyright law needs certain reforms in the interim to accommodate the needs of science, in the longer term, entire institutionalized science may have to be reconceived. Genuinely open science and the creation of a “true” scholarly knowledge commons require far-reaching changes in the way that copyright applies in the sphere of science. The continued role of commercial scholarly publishing needs to be questioned. Potentially, it will be necessary to “move beyond” the applicability of copyright in the field of science
Regulatory Outlook for Derivatives Based on Sports Outcomes
Get PDFThis Note dives into the intersection between two distinct areas: sports gambling and derivatives. ErisX had the keen idea to use sports-based futures contracts for hedging purposes, and thought that because of these hedging purposes, it would not be rubbing up against any sports gambling laws. However, the Commodity Futures Trading Commission (CFTC), in charge of regulating the trading of futures contracts, still presented a problem for ErisX. The CFTC prohibits futures contracts involving “gaming,” and while the purpose of these contracts are not speculative, they still involve sports. Therefore, a new CFTC body equipped to deal with sports-based contracts would go a long way in promoting strong and stable markets in the world of sports gambling
Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination
Get PDFDefendants have constitutional rights to cross-examine witnesses and to represent themselves. But when these rights are combined, they can have devastating effects on crime victims. All too often, defendants use the rights in a last-ditch effort to harass, bully, and intimidate the crime’s victims, sometimes leading to a dismissal of charges altogether, as victims withdraw their testimony to avoid personal cross-examination by the defendant. It does not have to be this way. Numerous courts have allowed standby counsel to conduct cross-examination of the victim within constitutional constraints. This article explores the limitations courts have imposed on pro se cross-examination to protect victims from harassment and retraumatization