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Racial Disparities in Crime-Based Removal Proceedings
Full text linkWhether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between 1998 and 2023 in US immigration courts. Our analyses produced three key findings. First, our results show that double penalties for immigrants in crime-based removal proceedings are large and growing. Second, there are significant racial disparities in the rate at which immigrants are released from detention, and the rate at which they are ordered removed from the United States. Specifically, Hispanic immigrants with drug-related charges, and Black immigrants with domestic-violence or firearms charges, face significantly worse outcomes than their counterparts. Third, non-White immigrants fare better when their presiding judges are of the same, rather than different, race. For White immigrants, however, they generally fare better than non-White immigrants regardless of the presiding judges’ race, and this White favoritism is more pronounced among some non-White judges than White judges. These findings have important implications for scholarship on the continuing salience of race and ethnicity in criminal and civil proceedings despite facially race-neutral laws, as well as policymaking aimed at advancing racial equality in our justice system
Bankruptcy Appeal Barriers
Full text linkAppeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan was unlawful and have appealed. And they have been proven right: The Supreme Court recently found in its Purdue Pharma decision that bankruptcy courts lack the authority to approve the plan’s central legal device. Even so, those outraged creditors may receive nothing. The Boy Scouts argue that their appeal should be dismissed without reaching the merits because the plan is, in key respects, already implemented. And the existing case law surrounding bankruptcy appeal barriers offers considerable support for this outcome.
This Article attempts both to assess the significance of bankruptcy appeal barriers and to evaluate potential justifications for them. These barriers matter deeply to affected litigants but also have systemic consequences. The constitutional legitimacy of the bankruptcy courts is predicated on their supervision by Article III judges. This supervision is substantially eroded by bankruptcy appeal barriers. Nor are these concerns wholly abstract. Bankruptcy judges are powerful. Appeal subjects the insular world of bankruptcy to outside scrutiny from generalist judges who do not necessarily buy into the precepts of bankruptcy culture and are not presented with the same in-the-moment incentives as bankruptcy judges. This Article additionally finds troubling the degree to which some appellate courts seem ready to resort to appeal barriers as an escape hatch to avoid deciding appeals even in quite simple cases, often involving unsophisticated parties. The justifications for bankruptcy appeal barriers, therefore, require a careful look.
Normatively, this Article suggests that bankruptcy appeal barriers are on shaky ground. To make the case that bankruptcy appeal barriers could be sharply constrained or even abolished, this Article draws analogies both to the more general federal law of remedies, and to instances under state law—such as Delaware corporate law—where appellate courts must grapple with how to engage in an after-the-fact evaluation of an already consummated transaction
When Electrification Meets Reindustrialization: The First EU Green Electric Vehicle Subsidies and the WTO Consistency
No full textThe French Government recently reformed the Ecological Bonus scheme, which has generously supported its domestic consumers in purchasing electric vehicles ( EVs ), by introducing a new criterion based on the amount of carbon emitted in the vehicle\u27s manufacturing. Starting in 2024, the scheme strictly sets the production carbon footprint ceiling at 14.75 tons of CO2, effectively denying the subsidy eligibility of more than one-third of EVs sold in France. Other European Union ( EU ) Member States, including Italy, have considered taking similar policy actions. Criticized as the French version of the discriminatory United States Inflation Reduction Act, the new Ecological Bonus scheme also represents the world\u27s first green EV subsidies based on carbon emissions, combining fiscal policy with regulatory standard-setting. This signals not only France\u27s but also the EU\u27s ambition to integrate electrification with reindustrialization amid intensified competition for leadership in the low-carbon sector. Given the EU\u27s obligations under the multilateral trading system as administered by the World Trade Organization ( WTO ), it is essential to examine the WTO\u27s consistency in the French green EV subsidies to avoid trade frictions, which has received scant attention so far. Therefore, this Article provides the first systematic legal and policy analysis of the interface between France\u27s new green EV subsidies and the EU\u27s WTO commitments. A WTO law scrutiny can reveal potential conflicts between Members\u27 electrification and reindustrialization agenda with the multilateral trading system. This Article makes actionable recommendations for policymakers to align green subsidies with international trade rules to maximize the synergy between trade liberalization and low-carbon transition. It also cautions that the time for revisiting the WTO rules, particularly those governing the use of subsidies to ensure they are fit for global decarbonization, may have arrived
Criminalization of Homelessness: The Impact of a Market-Oriented Approach
No full textSince the fourteenth century, countries have sought to criminalize unhoused individuals by labeling them as vagrants. Currently, the United States and other countries continue to criminalize acts of sleeping rough, begging, loitering and other vagrancy-type activities that disproportionately target unhoused persons. Despite going through a period of decriminalization in the 1960s and 1970s, these punitive measures were largely reinstated by the 1990s. In the most extreme case, vagrancy criminalization was entrenched in a state\u27s constitution. This Note contends that the reversion to punitive measures is triggered by a country\u27s transition to a market-oriented approach that privatizes housing development and de-emphasizes government control over social housing programs. Analyzing England, the United States, Canada, and Hungary as case studies, this Note explores how adopting a market-oriented approach can set off a chain reaction, including a public outcry against homelessness, that culminates in heightened measures to criminalize homelessness. These examples are contrasted with Scotland and Singapore, which, despite also emerging from similar historical contexts of vagrancy laws, do not criminalize homelessness but instead maintain government control of social housing. This comparison demonstrates the impact that a market-oriented approach has on the availability of housing to explain why certain countries criminalize homelessness
Making Alaskans Whole: How Regulators Can Restore Trans-Alaska Pipeline System Lands and Recover Billions for the Public
No full textThis Article examines the dismantlement, removal, and restoration requirements associated with the Trans-Alaska Pipeline System (TAPS). These decommissioning obligations, rooted in the right-of-way lease agreements between state and federal agencies and the pipeline owners, require the lessees to remove pipeline infrastructure and restore Alaskan lands at the end of the pipeline’s useful life. Yet the regulatory structures governing TAPS decommissioning are deficient in several respects. Regulators have failed to safeguard decommissioning collections using a designated fund or a comprehensive liability regime. An opaque and overly permissive approach to transfers of ownership between the TAPS carriers has substituted private agreements for concrete assurance that a new owner will complete decommissioning. Finally, it is unclear when or how regulators will define the scope of restoration or compel the TAPS carriers to refund excess decommissioning collections. Despite these ongoing regulatory failures, opportunities remain to enforce state and federal lease obligations. Policymakers have the power and the mandate to expand public governance, protect Alaskan workers, and transfer billions from out-of-state companies to public coffers
The Second Amendment\u27s Catholic Problem
No full textAfter New York State Rifle & Pistol Association v. Bruen, history is the touchstone of Second Amendment analysis. Thus, this Note explores an understudied part of America\u27s long and complicated history with weapons: Catholic disarmament. By undertaking a detailed historical analysis of three Catholic disarmament measures in the late colonial United States, this Note attempts to determine what the history means for present day firearms law. It concludes that even though courts frequently cite America’s history of Catholic disarmament, they rarely use it in a historically accurate way. Modern courts use Catholic disarmament to justify weapons bans on people the state considers dangerous or disrespectful to its laws, but those uses are out of step with the history. The historical analysis in this Note demonstrates that Catholic disarmament laws were narrow measures that targeted a particularly suspect group during a time of national emergency. The history of Catholic disarmament can only justify modern laws based on similar principles of immediate distrust (a term this Note coins).
But the journey toward this conclusion reveals as much as the conclusion itself. By faithfully applying the rules laid down in Bruen and United States v. Rahimi, this Note exposes the limits of their historically focused test. On the path to developing the immediate distrust principle, this Note exposes historically erroneous claims courts make, illuminates the difficulty of scouring the historical record, and explores the challenges raised by tying modern regulation to context-bound historical episodes
Fine-Tuning LLMs: Structural Fluency and Augmentation for the Great and Powerful Wizard of AI
Full text linkThe civil legal tradition carries assumptions, biases, and attitudes rooted in racism and ideologies intended to protect the (im)balance of power. This moment in history offers new versions of the same challenges with the integration of artificial intelligence (“AI”) and large language models (“LLMs”) into legal frameworks, and those critiques are being addressed in the legal discourse. Building on these perspectives, this moment also offers civil legal professionals a chance to engage in machine learning frameworks informed by social justice principles and accountable to measures of “equal justice for all.” The perception of fairness in the use of these tools is critical to protecting the integrity of and trust in the civil justice system. Although the features of LLMs may not be able to replace legal analysis just yet, developers anticipate that that is where these tools are headed sooner than one might think. Without intentional approaches to machine learning, LLMs will create a civil legal system twilight zone where machines propose new outcomes based on the ineffective patterns of the past, a never-ending feedback loop that traps litigants and stifles social progress. LLMs, and the AI tools which use them, offer a new reality in which legal analysis is more efficient. But, like a law student almost ready to embark on a legal career, LLMs must be properly trained in this time of early development to correct human error. Legal educators, who are not code or software developers, cannot simply change expensive and vast datasets. However, law professors, well versed in scaffolded learning such as the Socratic method and the nuances of social context, are well-situated for this challenge. In the fight for justice, law professors have relied primarily on cultural competency and racial literacy skills to empower subordinated individuals in their work toward systemic justice, critical lenses which can also prove useful in prompting LLMs. Missing from these competency, policy, and regulatory frameworks is a method for prompting machines in ways that “fine-tune” them for social justice. Prompting to encourage consideration of the macro structures and micro systemic forces at work, the historical legacies of injustice, and modern-day subtleties of patterned structural injustice based on social identity and other factors can improve performance and fairness. This Article, borrowing from medical and social work efforts to improve social determinants of health and outcomes, proposes fine-tuning prompts and prompt augmenting to enhance fluency in structural injustice of LLM outputs
