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Immigration as Business Strategy: Simplifying American Immigration Law in a Global Economy
Get PDFDespite immigration law’s notorious complexity, public debate on immigration reform has historically ignored basic questions of why and how the current laws should be simplified. Instead, discussion has often focused on substantive proposals—most commonly regarding legalization and border enforcement—without reference to the impact of these proposals on the legal immigration structure. This article emphasizes that any durable immigration reform must take steps to free the immigration system from the intricacies that define it today. The article begins by overviewing the basic features of the modern global economy, their implications for immigration law, and why these implications compel an immigration system based on simple rules. Then, borrowing from the literature on business strategy and organizational design, the article applies to the current immigration system a basic three-step framework for developing simple rules. In the first step—Setting the Objective—the article argues that family reunification, the primary objective of the current system, does not adequately acknowledge the global economy in which the American immigration system operates. As economic conditions affecting the United States have evolved since fifty years ago when family reunification emerged as the cornerstone of American immigration policy, the focus of the American immigration system must be reoriented towards competing in the global economy. In the second step—Identifying a Bottleneck—the article hones in on the second and third categories of the current five-category preference system for admitting employment-based immigrants. Examining the unique obstacles and complexities facing immigration under the EB-2 and EB-3 categories, the article identifies these categories as a focal point on which any effort to simplify American immigration law should take aim at the outset. Finally, in the third step—Formulating the Rules—the article argues that from the perspective of simplicity, a provisional visa program proposed by many commentators offers a legal system that is user-created, repetitively applicable, and easily adaptable—features that are necessary for the effective practical application of simple rules. As such, provisional visas provide a structurally viable replacement for the procedures currently used to admit immigrants who fall under the EB-2 and EB-3 categories. The overarching purpose of this article is to emphasize that sustainable reform of American immigration law must not only make substantive revisions, but also initiate a process of structural simplification. The article offers a conceptual starting point for this process by applying to the current immigration system a basic business-strategy framework for developing simple rules
Searching for Remedial Paradigms: Human Rights in the Age of Terrorism
Get PDFNine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists’ extreme human rights violations without violating international human rights norms and international humanitarian law
Succeeding in Manifestation Determination Reviews: A Step-by-Step Approach for Obtaining the Best Result for Your Client
Get PDFManifestation Determination Review (MDR) advocacy is difficult regardless of the role of the advocate —whether the advocate is a parent, an advocate, or an attorney. Because the MDR is conducted as an Individualized Education Program (IEP) Team meeting, if consensus cannot be reached, school personnel make the ultimate decision. Therefore, the advocate’s persuasiveness and preparedness at the MDR will be critical in arriving at a consensus. This Article goes beyond the basic legal framework for an MDR and focuses on practical suggestions and approaches to enhance an advocate’s efforts on behalf of a child or client. By employing the suggestions outlined in this white paper, we hope that advocates will be able to go into an MDR better prepared, have strategies to possibly avoid such a meeting, increase the number of positive decisions coming out of the MDR, and have a clear direction for next steps regardless of the outcome
When Do the Ends Justify the Means?: The Role of the Necessary and Proper Clause in the Commerce Clause Analysis
Get PDFThis Article discusses the interplay between the Necessary and Proper Clause and the Commerce Clause, particularly in light of the landmark decision of National Federation of Independent Business v. Sebelius. First, this Article reviews the historical interaction between the two clauses, discussing the instances in which the two may have been considered together, and introducing the Supreme Court jurisprudence of each clause, setting the legal landscape for the NFIB v. Sebelius decision. Next, this Article details the three opinions from the NFIB v. Sebelius decision, Chief Justice Roberts’ holding, the joint concurrence, and Justice Ginsberg’s dissent, specifically as they relate to the interaction between the Commerce Clause and the Necessary and Proper clause. This Article continues by exploring the different theories of constitutional interpretation reflected in the three NFIB v. Sebelius opinions. Finally, this Article concludes by proposing a “Means-Ends Framework” to govern the relationship between the two clauses. This framework proposes that a federal regulation of intrastate activity is only permissible when it serves as a means to an effective regulation of interstate commerce, and not as additional end that is outside of Congress’s enumerated powers
Mind the Gap: Understanding the U.S. Perspective on Privacy in Safe Harbor/Data Transfer Negotiations
No full textTransnational businesses are craving harmonization in the law and policy of data transfer across the Atlantic. The U.S.-EU safe harbor agreement fell on hard times in 2014, but its continuation seems a commercial essentiality and a political inevitability. The White House has been pushing a policy shift toward the EU position on consumer privacy since 2012. In 2014, the U.S. Department of Commerce, for matters within its purview, negotiated to resolution EC concerns over safe harbor. But law enforcement data use — not within the department’s purview — remained a sticking point. And with a new data protection regulation on the EU horizon, the spirit of cooperation in the north Atlantic is increasingly soured by reproach in U.S. media, political, and economic circles. Frustratingly, from a European perspective, the United States seems of two minds on the problem of privacy. And so it is. Businesses struggle to achieve seamless transatlantic commerce, a level playing field for market competition and growth. At the same time, the EU privacy framework cuts against the grain of certain deep-seated and structural biases in U.S. law and culture. Abraded by this tension, U.S. nerves are raw on the subjects of privacy, government regulation, and the very relationship of the United States with continental Europe. Business leaders, politicians, and lawyers can benefit by understanding how U.S. and European privacy perspectives diverge and by minding the gap
Big Brother versus the Little Sisters in the Supreme Court
No full textOn Friday, Nov. 6, the U.S. Supreme Court announced that it will review Little Sisters of the Poor v. Burwell, Secretary of HHS, one of seven similar cases it will hear in March and decide by the end of June. All these cases challenge the adequacy of Obamacare’s accommodation for religious organizations — like the Sisters — that provide healthcare or education but who have religiously-based conscientious objections to the provision of coverage for contraceptives, abortion and sterilization that HHS regulations mandate
Do Med Schools Do It Better?: Improving Law School Admissions by Adopting a Medical School Admissions Model
Get PDFThe differences between legal education and medical education start before students enter their post- graduate professions programs: the differences in the preparation begin during a period of undergraduate years. This article briefly compares pre-law and pre-medical undergraduate preparations, and discusses how the differences in preparation shape preparedness in professional school. Taking cues from the successes in pre-med preparation, this article provides recommendations for improving the law school admissions model by adopting more rigorous pre-law preparation standards. The recommendations in this articles are necessary prerequisite for law schools looking to produce the “practice ready” graduates that the public demands
Trends and Issues in Terrorism and the Law: Foreword
Get PDFThe introduction to the issue discusses the history of UMass Law Review and its contribution to legal scholarship
Prosecuting the Material Support of Terrorism: Federal Courts, Military Commissions, or Both?
Get PDFThis note argues that given the recent changes in the 2009 MCA the overall scheme for prosecuting material support of terrorism offenses is satisfactory (i.e., material support crimes should remain under the jurisdiction of both forums), but that the jurisdiction of military commissions over material support offenses should be limited to those providing material support to further specific acts of terrorism (as opposed to generalized support) and to those giving aid to terrorists or foreign terrorist organizations (hereinafter ―FTOs) in active theaters of war
