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All The Presidents\u27 Dreamers: Immigration Reform that Biden and Trump Can Agree On (and Why That Reform May be Elusive)
No full textWhile a sizeable gulf exists between the Trump and Biden administrations’ approaches to immigration, there is one policy area where these presidents would see eye-to-eye: a legal pathway for “Dreamers,” longtime undocumented residents who initially came to the U.S. as children. Notwithstanding this exceptional example of bipartisanship, how the nation now moves forward to create such a pathway is a conundrum. The political divide that has stalled a two-decades-long search for a congressional solution has its roots in America’s longstanding ambivalence about whether and how to provide basic opportunities to the least of its denizens. This Essay traces the current stalemate over the Dreamers to earlier disputes about desegregation and public school funding evident in a trio of landmark cases – Brown v. Board of Education, San Antonio Independent School District v. Rodriguez, and Plyler v. Doe – each of which highlights tensions underlying the Court’s commitments to ensuring equal protection of the law to minoritized communities. With respect to Dreamers in particular, the Obama/Biden approach will be compared to and contrasted with Trump’s policy perspective. Viewing these approaches from the lens of three constitutional themes – separation of powers, federalism, and individual rights – this Essay argues that true legislative progress for the Dreamers continues to be an uphill battle because of the history lessons gleaned from Brown through Plyler
Sexual Violence, Intangible Harm, and the Promise of Transformative Remedies
No full textThis Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused harm. Although transformative justice has developed outside the legal system, its principles and methods are targeted toward the unique, often intangible harms experienced by sexual violence survivors. Therefore, transformative justice remedies should be available alongside and inside the legal system so survivors, their impacted communities, and those who cause harm can benefit from them
Megacompany Employee Churn Meets 401(k) Vesting Schedules: A Sabotage on Workers\u27 Retirement Wealth
No full textRetirement wealth inequality and retirement security are issues that the United States has been grappling with for years. Low-paid and minority workers are most likely to be unable to accumulate retirement savings over time. This Article spotlights Amazon, one of America’s largest employers and one that has very high employee turnover. To be vested in Amazon’s 401(k) matching contributions, an employee must be there for three years—a requirement that is not being met given the much quicker turnover in their low-paid, predominantly minority warehouse workforce.
Until now, there has not been discussion about the grossly unfair result of mixing high employee turnover and 401(k) plan vesting schedules. This Article shows that sizeable high-turnover companies are utilizing legal 401(k) plan vesting schedules to their own benefit with the effect of worsening retirement wealth inequality.
This Article argues two steps are necessary solutions to address this problem. The first argument aligns with President Biden’s order to governmental agencies to step up their data collection to quantify the inequities in the legal system. We need to collect more specific data on gender, race, and pay of those who terminate prior to vesting. This will allow us to assess the impact of vesting schedules on retirement plan inequality.
The Article then argues that megacompanies should be foreclosed from using vesting schedules in their retirement plans. They simply employ too many people, and many are in high-turnover businesses. It is against public and retirement security policy to allow high-turnover megacompanies to shortchange employees and take advantage of vesting schedule use in their 401(k) plans particularly when the goal of using vesting schedules—to retain employees—is not being met.
Something needs to be done to address the direct tension in retirement plan policy when employers that know they have high turnover use a vesting schedule. The Article sets forth various tests as alternatives to immediate vesting. Each method has the potential to incentivize companies to reduce churn. If a company does not want to be subject to a new test, then it could simply amend its plan to immediately vest everyone
Mitigating Racial Bias in Machine Learning
No full textWhen applied in the health sector, AI-based applications raise not only ethical but legal and safety concerns, where algorithms trained on data from majority populations can generate less accurate or reliable results for minorities and other disadvantaged groups
NOT SO RESPECTFUL CONSIDERATION: THE U.S. SUPREME COURT’S DEFERENCE OR LACK THEREOF TO FOREIGN GOVERNMENT STATEMENTS OF LAW
No full textThe amount of deference due foreign governments’ statements regarding the meaning of foreign law has long plagued U.S. courts. Courts have applied a variety of approaches in answering this question, including reliance on doctrines of international comity, respectful consideration, and Rule 44.1 of the Federal Rules of Civil Procedure. The U.S. Supreme Court recently attempted to provide additional guidance to lower courts and litigants in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., Ltd., where it created a new, five-factor test. However, application of this new test is likely to generate continued uncertainty and inconsistency in this area of law and could potentially lead to negative foreign policy consequences. This article seeks to delineate the different scenarios in which this issue tends to arise and to suggest a more consistent approach to deciding these types of issues in the future that will be less likely to interfere with U.S. foreign relations
The Entity Attorney-Client Privilege Meets the Twenty-First Century: Rethinking Functional Equivalent Analysis in the Time of a Nonemployee Workforce
No full textAddressing Climate Impacts in Alaska Native Tribes: Legal Barriers for Community Relocation due to Thawing Permafrost and Coastal Erosion
No full textRural communities is Alaska—predominantly Alaska Native Tribes—are at the forefront of climate change impacts and climate justice concerns in the United States. According to the 2019 Alaska statewide threat assessment report, 29 communities are currently experiencing significant climate change-related erosion. Further, 38 communities faces significant flooding, and 35 have major problems with thawing permafrost. Some Alaska Native communities have explored community relocation to adapt to these impacts. Because federal law does not recognize gradual environmental impacts like thawing permafrost and coastal erosion as disasters, these communities are ineligible for disaster funding and struggling with how to adapt to the very urgent—albeit less immediate—issues that they face.
This article analyzes the chalenges of Alaska Native Tribes attempting to access federal assistance for community relocation. While some posit that the federal trust responsibility for Tribal Nations might help leverage federal help with community relocation, the status of Alaska Native Claims Settlement Act (ANCSA) extinguished almost all claims of aboriginal title and reservations in Alaska. General access to federal disaster funding and programs may be another avenue for assistance; however, the limited definition of disaster and overly burdensome requirements for federal programs mean that many Alaska Native communities are left to struggle on their own.
In response to these challenges, this article explores possible solutions to help these communities with their relocation efforts. It examines the newly adopted Building Resilient Communities and Infrastructure Program as a potential funding opportunity for community relocation efforts, along with programs focused on climate justice. Finally, the article concludes by proposing the expansion of a state role in helping coordinate federal grant programs on behalf of Alaska Native Tribes and the funding of resilience officers by the federal government at regional Alaska Native organizations to navigate requirements for community relocation grant programs
Frozen Embryos, Male Consent, and Masculinities
No full textPicture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult and her partner was a child, under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave birth, she sued the teenager for child support. Despite his protest that he did not consent to the sexual activity that led to the child’s birth, the court affirms the child support order.As a practical matter, this inconsistency in treatment of unwanted fatherhood may instinctively make sense, applying two different rules for two very different contexts. A deeper examination of the cases, however, reveals much more going on. This Article uses the frame of masculinities theories to dive further into the inconsistency and uncovers two groundbreaking implications that stretch far beyond the specific circumstances. First, the varying treatment of embryo disposition disputes and the characterization of male victims of statutory rape have one constant: a dismissal and rejection of men’s emotions. Second, exploring the inconsistent treatment of men’s consent to become fathers in sexual reproduction versus stored embryos reveals a clear rejection by courts of the personhood concept that embryos are human life. These revelations inform not only how embryo disposition disputes should be resolved, but also fetal personhood and family law’s treatment of fathers