SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Terrorism and Asylum Seekers: Why the Real ID Act is a False Promise
No full textThe Real ID Act, passed on May 11, 2005, is the first post-September 11 antiterrorism legislation specifically to target a group of vulnerable individuals to whom the United States has historically granted protection: asylum seekers. The passage of the Real ID Act led asylum advocates to wring their hands in despair and immigration restrictionists to clap their hands in glee. This Article argues that both sides of the debate may have been justified in their reactions, but not because of the immediate chilling impact on asylum that they seem to expect. With regard to requirements for establishing asylum eligibility, the Real ID Act, rather than imposing new, onerous restrictions on asylum, codifies case law upon which adjudicators, advocates, and government attorneys have been relying for decades. However, several areas of poor drafting, combined with legislative history mischaracterizing the asylum system as a haven for terrorists and suicide bombers, may result in the denial of bona fide asylum applications. This Article provides concrete guidance for adjudicators, advocates, and government attorneys applying the Real ID Act to asylum cases. It examines the case law upon which some of the provisions are based and offers interpretations for unclear provisions. Overall, this Article emphasizes that it is the duty of adjudicators, advocates, and government attorneys to protect victims of persecution
Runoff and Reality: Externalities, Economics, and Traceability Issues in Urban Runoff Regulation
No full textIt has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described as non-point source pollution. According to the United States Environmental Protection Agency (EPA), States report that nonpoint source pollution is the leading remaining cause of water quality problems. As a result, determining the origin of certain pollutants becomes very difficult - if you cannot trace them to a certain dumping pipe because the substances simply runoff from a non-point source it becomes far more difficult to identify the originating location of contaminants. This Article will explore these difficulties. In addition to and in conjunction with federal regulation, most states have implemented plans to control for the contribution of runoff and non-point source pollution to water quality, but it is a still developing area of environmental law. The complexity of this process of regulation, however, is high. This Article remains largely agnostic and focuses on the complexities and difficulties that must be taken into consideration as regulations develop and are applied in this area. It attempts to identify the metrics, economics, and realities that must underlie the regulation of runoff
The Detainee Cases of 2004 and 2006 and Their Aftermath
No full textThe War on Terror, more than any other war, involves lawyers. For example, they track down terrorist funding, freeze bank funds, and engage in electronic surveillance. Even more significantly, those whom the military has captured are using the U.S. court system to seek release from their detention. While there are a few cases on this issue going back to the Civil War and World War II, the U.S. Supreme Court has issued major rulings on this question in the last few years. The media and those suing the Government claim that these cases have rejected and dealt severe blows to the Administration\u27s claims. However, a closer look at the case law indicates that the Court has only imposed fairly minor and reasonable restrictions on the military. The Court also has made clear that it treats the present situation as a war, not a police matter. For the most part, the Court has imposed restrictions based on its interpretation of statutes, not the U.S. Constitution, so Congress can change those statutes (and has done so). The Administration has, indeed, taken some overly-broad positions, which the Court has rejected, but those positions were not necessary to the Administration arguments although they have served to weaken its position
Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code
No full textWe sometimes think, loosely, that ethics is good and that therefore more is better than less. But more is not better than less, if the more exacts higher costs, measured in terms of vague rules that impose unnecessary and excessive burdens. Overly-vague ethics rules impose costs on the judicial system and the litigants, which we should weigh when determining whether to impose ill-defined and indefinite ethics prohibitions on judges. Unnecessarily imprecise ethics rules allow and tempt critics, with minimum effort, to levy a plausible and serious charge that the judge has violated the ethics rules. Overuse not only invites abuse with frivolous charges that have the patina of legitimacy, but also may eventually demean the seriousness of a charge of being unethical.
The ABA is now revising its Model Code of Judicial Conduct. Most states and the federal courts follow the ABA Model Code in enacting their own judicial rules. The ABA is proposing to take what is now merely the title to a rule and make it a separate rule. Proposed Rule 1.02 provides: A judge shall avoid impropriety and the appearance of impropriety. This proposed rule, however, does not really define impropriety or what is an appearance of an impropriety. Apparently, it is wrong to do something that is not wrong but appears wrong, as perceived by a reasonable person with knowledge of the circumstances to impair the judge\u27s ability to carry out judicial responsibilities with independence, integrity, impartiality, and competence. But if the person really had knowledge of the circumstances, he or she would know whether the conduct was really wrong or not. Proponents of a rule that forbids judges from engaging in the appearances of impropriety argue that the rule promotes, in the view of the lay public, the integrity of the judges. On the contrary, the power to unfairly criticize a judge as violating the appearances of impropriety serves to bring the judiciary in disrepute. Granted, not all rules can be written with crystal clarity, but many can be. The phrase, appearance of impropriety certainly offers a reason why the frames drafted some rules as broadly as they did. But it is too vague to be a rule
Exchange and Specializiation as a Discovery Process
No full textIn this paper we study the performance of an economic environment that can support specialization if the participants implement and develop some system of exchange. We define a closed economy in which the participants must discover the ability to exchange, implement it, and ascertain what they are comparatively advantaged in producing. Many people demonstrate the ability to find comparative advantage, capture gains from trade, and effectively choose production that is consistent with the choices of others. However, many do not become specialists, even though full efficiency can only be achieved if everyone does so. Near-full efficiency does occur bilaterally in these economies, typically because some individuals have entered a stable trading relationship with a specialist in the other good. Such pairing does not necessarily give impetus to the formation of other pairs, nor are pairs open to the inclusion of a third party. We explore various treatments to provide insight into the conditions that might foster the growth of specialization and exchange within this austere institutional framework. We find one treatment that achieves high levels of efficiency in half of the sessions
International Migration and Sovereignty Reinterpretation in Mexico
No full textRecent developments in Mexico\u27s doctrine of non-intervention suggest that national experiences with migrant-sending influence how sovereignty concepts are applied in domestic law. Based on the concept of international sovereignty and included in Mexico\u27s Constitution Article 89:X, the international law norm of non-intervention prohibits a country\u27s foreign relations from interfering in another country\u27s domestic affairs. With traditional sovereignty reasoning, the norm of non-intervention prohibited Mexico from having a foreign policy on its migrants in the US, because the issue intervened in US jurisdiction; such a policy would violate the norm and international sovereignty.
This essay\u27s central claim is that recent developments suggest Mexican foreign relations law, e.g., Article 89:X, applies sovereignty-based legal doctrine in less absolute and traditional manners. These changes are the result of a transnational influence, when sovereign authority is conceptualized to include the interests of actors outside national borders. In 2001, Mexico conducted its most active campaign, at times labeled the whole enchilada, to lobby US lawmakers for reforms to US immigration laws. These developments are contrary to traditional interpretations of non-intervention. This points to the opposite of the doctrine\u27s traditional reasoning, indicating that foreign relations may influence other countries\u27 domestic affairs.
This essay highlights how traditional sovereignty reasoning, e.g., absolute sovereignty, in Mexico has been replaced by a more transnational interpretation of sovereignty. This is eye-catching for a student of international legal doctrine because the non-intervention doctrine is based on ideas of absolute sovereignty. Non-intervention seeks to exclude foreign influence in domestic issues. Its ultimate goal is to protect independent and autonomous sovereign authority, e.g., absolute sovereignty, from external threats. Currently, more transnational elements characterize the limits of sovereign authority.
To prove these claims, Section I presents how immigration should be studied as a transnational subject, since its effects are experienced in both sending and receiving countries. This helps identify how changes in the non-intervention doctrine are deviations in applying absolute sovereignty reasoning, and suggest instead that there is a currently transnational influence in this reasoning. Section II describes how the Mexican non-intervention doctrine is based on absolute sovereignty ideals. It envisions sovereign authority, over immigrants in national territory and over domestic law-making or migrant regulation, as exclusive and without limitations. Section III reports how Mexican foreign relations law has reinterpreted the norm of non-intervention and applied it differently. Traditionally the norm resulted in Mexico\u27s policy of no-policy, with Mexico not advocating for its nationals overseas. Since the mid-1990s, Mexican foreign relations have deviated from this rigid interpretation with aggressive lobbying of US lawmakers for changes to US immigration law, an active program representing migrants through Mexican consulates, representing migrant and Mexican concerns to US policy makers, and seeking an immigration agreement with the US. Section IV concludes by analytically incorporating doctrinal changes Mexican law with transnational analysis of sovereignty concepts
