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No Restoration, No Rehabilitation: Shadow Detention of Mentally Incompetent Noncitizens
Get PDFThis article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not provided with meaningful opportunities to request release from custody to seek treatment, nor are there any concerted efforts to either restore or rehabilitate their competency. As a result, I argue that this group of noncitizen detainees is denied meaningful access to the court system in violation of Section 504 of the Rehabilitation Act. This article proposes a regulatory change to ensure compliance with the Rehabilitation Act and further explores why alternative solutions are unreliable, inefficient or implausible
How Much Has the Supreme Court Changed Patent Law?
Get PDFThe U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate in Federal Circuit cases.
In this essay, I suggest that the Supreme Court’s effect on patent law has actually been more limited, for two reasons in particular. First, the Supreme Court’s recent decisions, though substantial in number, have rarely involved the fundamental legal doctrines that directly ensure the inventiveness of patents and regulate their scope. Second, the Supreme Court’s minimalist approach to opinion writing in patent cases frequently enables the Federal Circuit to ignore the Court’s changes to governing doctrine
What We Learn From Government Speech About Hate
No full textThe bombing of a mosque and community center in suburban Minneapolis 10 days ago and the horrific events in Charlottesville, Va., over the weekend are just the most recent examples of hateful violence that has become all too common in America.
Such events require government speakers at all levels and in all branches—federal, state and local; executive, legislative and judicial—to make important choices about how they use the platforms that their positions offer. Will they speak out? Will they remain silent? Will they stand up to or, instead, provide cover for those who traffic in hate and destruction
NFIB v. Sebelius at 5
Get PDFKeeping up with health care reform is like running up a mountain of sand - every time you reach the top, -the terrain starts shifting. In this talk, I offer a snapshot of where we are in implementing the Patient Protection and Affordable Care Act ( ACA ) to aid in understanding the significance of NFIB v. Sebelius\u27 at five. I will situate the ACA2 within historical patterns in American health care reform. I have been asked to discuss the key points of the NFIB decision, after which I will share some of the research that I have performed for the past five years with co-authors to understand health care federalism within the context of implementing the ACA.3 Finally, I will talk a bit about where health care reform may be going from here and how NFIB has ongoing impact on implementing the ACA, even into a new presidential administration
IRS\u27s CP-2000 E-Mail Scams - Never in Dubai - Common in Canada & the UK
Get PDFOn September 22, 2016 the Internal Revenue Service (IRS) and its Security Summit partners issued an alert to taxpayers and tax professionals to be on guard against fake e-mails purporting to contain a tax bill related to the Affordable Care Act. Surprisingly, this e-mail scam works. It really should not.
Modern technology is facilitating many contemporary tax scams. In recent years the US has seen false (refund) return scams, phone scammers impersonation IRS agents, and now e-mail scams with fraudulent CP-2000 notices attached to a demand for payment. The same phone and e-mail frauds have appeared in both Canada and the UK. The timing of the Canadian and UK frauds suggest a migration of the phone fraud from the US to the UK and Canada. That is the analysis of the UK’s Action Fraud Agency, part of the National Fraud Intelligence Bureau (NFIB) within the City of London Police Department.
The Indian government has begun an enforcement action against a number of call centers outside Mumbai related to the IRS impersonation phone scam. If past patterns prevail one might expect that closing the five call centers identified in the HGlobal indictment would only mean that other call centers would take up the business, and the fraud would continue. The same frauds, from the same Indian call centers also appear to be behind a phone fraud up-tick in Australia, and New Zealand. Following the same pattern, Irish phone frauds recently morphed into e-mail scams purportedly coming from Irish Revenue, which the Irish believe migrated into Ireland from the UK.
This is like a game of “whack-a-mole.” When a tax scam gets put down in one area we tend to see both: (a) a migration of the fraud to other jurisdictions (the US phone scam’s migration to Canada and the UK), and (b) a domestic mutation of the fraud (the US phone scam morph into the CP-2000 e-mail scam.) New scams pop up whenever old scams are put down.
There are lessons to be learned. This paper focuses on the new e-mail scams, a mutation of frightening potential. It is a technology-based scam, and it has the capability to eclipse all the older scams. It needs to be taken very seriously
The Restatement of Employment Law\u27s Independent Business Person-Entrepreneurial Control Test for Employee Status
No full textChevron is a Rorschach Test Ink Blot
Get PDFI agree with Alan Morrison that, in some circumstances, courts should defer to legal determinations made by administrative agencies. I disagree, however, with Alan’s view that Chevron provides a suitable framework for such deference. It really boils down to my disagreement with the first sentence of Alan’s article: “In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them.”1 In fact, the Supreme Court adopted nothing in Chevron related to statutory interpretation or anything else, except, perhaps, this:
(In case this image is unfamiliar, it is the first ink blot in the series used in the Rorschach test.)
Chevron has no discernible content. It is open to whatever interpretation the reader would like to give it. Allow me to elaborate
Imagining Equity and Inclusion: South Africa\u27s International Economic Politics and Reflections on the Writings of Justice Dikgang Moseneke
Get PDFIn honour of Justice Dikgang Moseneke, this essay takes up his invitation to imagine an ethos consistent with South African Constitutionalism, one which could promote economic justice. This essay explores how the tools of international economic law as utilised by South Africa could serve as a means of transformation to advance the end of a more inclusive economic globalisation. South Africa\u27s trade policies and participation in international business and human rights policy initiatives are offered as illustrations of a shift towards asserting interests aligned with the country\u27s constitutional economic justice commitments. First, emphasising Justice Moseneke\u27s writings outside of his rulings the essay explains the imperative of economic justice for South Africans. Next, the essay situates the strategic policy choices South Africa has made to better align the country\u27s law and policy with respect for economic and social rights in response to pressures from foreign investors. By ending bilateral investment agreements with some countries and engaging in efforts to advance a binding international agreement on business obligations to respect human rights South Africa is demonstrating that a different approach to engaging with the global marketplace consistent with the calls Justice Moseneke has made in his writings is possible. This essay concludes with a call for legal professionals and policy makers to imagine ways to apply the principles of participation and transformation contemplated in South Africa\u27s Constitution to international economic law. The unique features of South African law and society hold promise for promoting both economic development and social justice