SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Modern-Day Slavery and Cultural Bias: Proposals for Reforming the U.S. Visa System for Victims of International Human Trafficking
No full textThe international trafficking of human beings has emerged as one of the most lucrative and far-reaching industries in the world, second only to trafficking in drugs and tied with trafficking in arms. Many victims of international human trafficking, including teenagers and young children, are forced to work in the sex trade. Others work in areas such as agriculture, restaurants and sweatshops. In 2000, in an effort to combat trafficking and encourage trafficking victims to assist in the prosecution of traffickers, the United States enacted the Victims of Trafficking and Violence Protection Act (VTVPA), which created a new visa, called the T visa, for victims of severe forms of trafficking. As of August 2006, however, immigration officials had approved only 600 principle T visa applications since the enactment of the visa category. This Article identifies several problems with the T visa system that may be responsible for its failure to reach more trafficking victims. It calls for significant changes to the T visa process, primarily the establishment of a Trafficking and Exploitation Victims Assistance (TEVA) program designed specifically to facilitate the identification and evaluation of potential T visa beneficiaries. The Article also suggests interpretations of the T visa statute that recognize the economic and social conditions of the countries of origin of trafficking victims. The Article concludes that implementing the recommendations will lead to a more humane and effective system for protecting international human trafficking victims and prosecuting traffickers
Sovereignty Migrates in US and Mexican Law: Transnational Influences in Plenary Power and Non-Intervention
No full textMexico and the US exercise increasingly transnational, less absolute, sovereignty with respect to migration. This is evident in changes to Mexico’s norm of non-intervention (NIV) and the US’ plenary power doctrine (PPD), two doctrines sourced in international sovereignty. Both historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. NIV prohibits Mexican foreign relations from interfering in another state’s domestic affairs. Traditionally it barred a foreign policy on migrants in the US, leading to Mexico’s no policy on migrants. PPD labels immigration law as immune from judicial review because the political branches have complete, plenary, authority over it. Traditionally, PPD barred constitutional limitations to this migration authority.
Two events since 2001 inspire a transnational examination of changes in traditional sovereignty. First in Zadvydas v. Davis, the Supreme Court explicitly stated that the plenary power is subject to important constitutional limitations. Second, Mexico actively lobbied US lawmakers for reforms to US immigration laws, an effort sometimes called the whole enchilada. These developments point to the opposite of each doctrine’s conclusion, that: there are constitutional limits to PPD and foreign relations may influence another state’s lawmaking.
This examination is presented in five sections which: transnationally analyze international migration, describe PPD and NIV’s foundations in absolute sovereignty, present Mexico’s active foreign relations on migrants, discuss the US Supreme Court’s use of the canon of avoidance to limit PPD, and conclude how these changes suggest a transnational influence in legal sovereignty conceptions
Sovereignty Migrates in US and Mexican Law: Transnational Influences in Plenary Power and Non-Intervention
No full textMexico and the US exercise increasingly transnational, less absolute, sovereignty with respect to migration. This is evident in changes to Mexico’s norm of non-intervention (NIV) and the US’ plenary power doctrine (PPD), two doctrines sourced in international sovereignty. Both historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. NIV prohibits Mexican foreign relations from interfering in another state’s domestic affairs. Traditionally it barred a foreign policy on migrants in the US, leading to Mexico’s no policy on migrants. PPD labels immigration law as immune from judicial review because the political branches have complete, plenary, authority over it. Traditionally, PPD barred constitutional limitations to this migration authority.
Two events since 2001 inspire a transnational examination of changes in traditional sovereignty. First in Zadvydas v. Davis, the Supreme Court explicitly stated that the plenary power is subject to important constitutional limitations. Second, Mexico actively lobbied US lawmakers for reforms to US immigration laws, an effort sometimes called the whole enchilada. These developments point to the opposite of each doctrine’s conclusion, that: there are constitutional limits to PPD and foreign relations may influence another state’s lawmaking.
This examination is presented in five sections which: transnationally analyze international migration, describe PPD and NIV’s foundations in absolute sovereignty, present Mexico’s active foreign relations on migrants, discuss the US Supreme Court’s use of the canon of avoidance to limit PPD, and conclude how these changes suggest a transnational influence in legal sovereignty conceptions
Giving Direction to Discretion
No full textThe common law established the doctrine of sovereign immunity whereby the government is not civilly liable for its misdeeds. The Supreme Court in 1821 adopted the doctrine for lawsuits against the United States. Legislatures can abrogate sovereign immunity. To a greater or lesser extent, all jurisdictions have done so in the United States. Congress enacted the Federal Tort Claims Act (FTCA) in 1946 to impose liability against the federal government for acts of negligence, as determined by the law of the place where the act or omission occurred. However, a major exception in the FTCA exists for the performance of discretionary functions, i.e. when the government employee is engaged in an act of discretion. Congress though did not define discretion, which has left the statutory interpretation of a highly ambiguous phrase to the courts. Led by a series of Supreme Court decisions, many federal courts have defined the exception broadly, such that immunity is favored at the expense of safety and liability. Often even mundane acts of negligence are held to be acts of discretion. Cases finding discretion exceed those imposing liability. Attempting to draw a line between discretionary and non-discretionary acts often leads the courts to seemingly inexplicable distinctions. Significantly, the analysis of negligence does not arise until the issue of discretion is resolved. This article looks at how the discretionary functions exception plays out, especially with the public lands (Roughly 1/3 of the nation\u27s lands are held by the federal government) and in government inspections. A series of cases led by the Ninth Circuit, and followed to some extent by the District of Columbia, Third, Eighth, and Tenth Circuits, read a much more restrictive interpretation into the discretionary functions exception, thereby favoring liability and promoting safety. These cases first look at the act to determine if it is of the nature to be protected as discretionary - that is, grounded in social, economic, or political policy considerations. Even if the decision is a protected discretionary design, discretion is not involved in construction or maintenance. Nor can it be implemented in violation of objective safety or technical standards or building codes
Contemporary Legal Lessons from the Holocaust
No full textSixty years after the Nuremberg Trials, the Nuremberg legacy is part of modern international law. An important aim of the Western judges and prosecutors at Nuremberg was to spotlight the wholesale corruption of the German legal system during the Nazi period. At the Justice Trial in Nuremberg, the defendants argued that their actions conformed with German law. Although this defense was rejected, legal scholars still grapple with the jurisprudential conundrum that the Holocaust could simultaneously have been both legal and criminal. The failure of German legal actors to oppose the Nazi transformation of German law into legal barbarism has implications for the current dilemma faced by liberal democracies on how to maintain civil liberties while simultaneously enacting laws to protect against terrorism. Although judges in the United States, United Kingdom, and Israel so far have maintained a balance, it is too early to make a final evaluation. Remembering the behavior of German judges and lawyers during the Nazi era can help ensure that today\u27s democracies, faced with the threat of terrorism, do not transform themselves into legal tyrannies
Furman\u27s Mythical Mandate
No full textThis Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court\u27s regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the Court has struggled to fulfill. However, this Article shows that consistency is implausible as an Eighth Amendment aspiration and that the Court has never seriously pursued consistency after Furman. The Court has focused almost entirely on promoting expansive individualized consideration of capital offenders, a goal at odds with consistency. The problem is that the Court\u27s continuing rhetorical commitment to Furman\u27s mythical mandate has cast doubt on the value and legitimacy of individualization and has diverted attention from efforts to clarify why individualization serves Eighth Amendment ends. In defense of the doctrine, the Article provides an Eighth Amendment theory for individualization - one founded on avoiding retributive excess. The Article also shows, however, that this theory calls for reforms that could further assure that only the deserving receive the death penalty
The Trafficking and Exploitation Victims Assistance Program: A Proposed Early Response Plan for Victims of International Human Trafficking in the United States
No full textThe Trafficking Victims Protection Act, ground-breaking legislation designed to punish traffickers and protect victims, is not reaching its full potential as a powerful tool against international human trafficking. A principal component of the Act – the availability of special “T visas” for trafficking victims who cooperate with law enforcement officials against their traffickers – is failing to reach its intended beneficiaries. According to U.S. government statistics, less than one percent of individuals trafficked into the United States have received protection in the form of a T visa. This article identifies weaknesses in the T visa system and proposes reforms designed to make the T visa system responsive to the unique circumstances of trafficking victims. Drawing from lessons learned from another U.S. protection regime – that which is in place for victims of persecution seeking asylum in the United States – this article offers practical, victim-centered solutions for identifying, assisting and protecting victims of international human trafficking. It also proposes a cooperation waiver for those victims whose family members abroad face severe retaliation by their traffickers. Overall, this article emphasizes the need for appropriate treatment of trafficking victims and the establishment of a comprehensive, collaborative system designed to empower, rather than further alienate, victims of international human trafficking
Statement on Prediction Markets
No full textPrediction markets are markets for contracts that yield payments based on the outcome of an uncertain future event, such as a presidential election. Using these markets as forecasting tools could substantially improve decision making in the private and public sectors.
We argue that U.S. regulators should lower barriers to the creation and design of prediction markets by creating a safe harbor for certain types of small stakes markets. We believe our proposed change has the potential to stimulate innovation in the design and use of prediction markets throughout the economy, and in the process to provide information that will benefit the private sector and government alike