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Negotiations in Juvenile Dependency: Addressing Power, Race, and Class Inequities
Get PDFA primary goal of the juvenile-dependency system is the preservation of the family, yet this goal is undermined by the gross disparity in bargaining power that exists between parties and that disproportionately affects poor families of color. This Note argues that the systemic power imbalance within the dependency system that disadvantages parents and is exacerbated by racial and class bias can be ameliorated by incorporating objective criteria into proceedings, moving from an adversarial to problem-solving approach in negotiations, requiring cultural competency that acknowledges disproportionality and its sources, and expanding access to mediation. This Note proceeds in five parts. Part I provides an overview of the juvenile-dependency system. Part II discusses racial and class disparities in juvenile dependency. Part III describes negotiations in juvenile dependency, particularly the parties involved, the way information is gathered and shared, and how race and class impact negotiations. Part IV offers a series of case studies, which are incorporated into Part V to illustrate proposed reforms
07. Erwin Chemerinsky with Anne Andrews
No full textFrom Left, Erwin Chemerinsky, Anne Andrews. Anne Andrews is a member of the UCI Law Dean\u27s Executive Board and longtime supporter of the law school.https://scholarship.law.uci.edu/uci_law_stories_images_early-years/1008/thumbnail.jp
Do We Need a Bar Exam . . . For Experienced Lawyers?
Get PDFThe fierce determination to require a bar exam during the COVID-19 pandemic left quite an impression on new lawyers entering the profession. State bars and state supreme courts made their position clear: the bar exam provides a screening function necessary to safeguard the public. Many disagreed.
Even a cursory look at attorney discipline reveals that the lawyers who get into disciplinary trouble are not mostly new lawyers. The lawyers who get into trouble tend to be more experienced lawyers, who have not had any formal or objective tests of their ability to function since their original bar exam pass. The only check on their performance is discipline after harm has been done.
Regulators deem the bar exam and character and fitness as necessary tests at the entry gate to the profession. As I contend in this Article, however, evidence supports regular administration of these tests throughout lawyer careers, not just at the beginning. I challenge the profession to consider whether the entirety of the current regime for assuring lawyer competency and quality can be improved to serve the public
Making Whistleblowers Whole
Get PDFIf ever there was a time in history in which whistleblowers have taken center stage, it has been the past two years. From COVID-19 to Trump’s first impeachment trial, whistleblowers have played a vital role in bringing to light information otherwise impossible to obtain. While the value that whistleblowers bring to government, organizations, and society has always been immeasurable, it is still the case that whistleblowers ultimately suffer a disastrous fate. They have made the decision to speak out against wrongdoing, often risking their jobs, livelihoods, and ability to thrive in their respective industry due to harassment, demotion, exclusion, or termination. As a result, the emotional harm that they naturally suffer is significant. In some cases, it even leads to depression, suicide, and other devastating consequences. Yet one of the most prominent federal whistleblower programs today—the Securities and Exchange Commission’s (SEC) whistleblower provisions under the Dodd-Frank Act—is an anomaly in numerous respects. It is one of the only federal whistleblower programs that fails to offer non-economic, emotional damages as a remedial provision. After examining personal accounts of whistleblower experiences, this Article will conduct a comparative analysis of the damages available under the SEC’s whistleblower program of the Dodd-Frank Act as compared to several other notable whistleblowing statutes, some of which are also within the domain of the investment markets. This Article will then propose a theoretical basis in support of emotional damages for whistleblowers by both incorporating deterrence theory under economic principles in tort law and undergoing a “rights vs. remedies” analysis that considers the substantive and procedural considerations of ensuring that whistleblowers, in their pursuit of justice against their retaliators, are truly made whole
Institutional Design for Access to Justice
Get PDFDecades of empirical research have confirmed the prevalence of troublesome situations involving civil legal issues in everyday life. Although these problems can be associated with serious financial and social harm, they rarely involve recourse to lawyers or formal legal institutions. Contemporary scholars and practitioners increasingly integrate this reality into the definition of access to justice. They understand access to justice to be concerned with equality in the ability of individuals to achieve just resolutions to the problems they experience, regardless of whether they pursue formal legal action. To achieve this goal, an emerging international set of best practices calls for access to justice interventions that are proactively targeted to those groups most in need of assistance, linked to other social service providers, aimed at addressing problems early to avoid escalation, and customized to the user’s capabilities. In stark opposition to such an outward-facing, multifaceted approach, the civil justice system is structured to respond only to formal legal claims. We have few auxiliary institutions that provide alternative avenues to resolution and several barriers inhibit individuals’ ability to address civil legal problems. As a result, access to justice, as contemporarily understood, is largely an orphan issue—a social problem for which no institution bears responsibility. In this Article, I propose an agenda of institutional reforms to better align key social institutions with a contemporary, evidence-based understanding of access to justice. These institutional reforms would enhance individuals’ ability to access justice, within or without the courthouse walls
Trafficking and the Shallow State
Get PDFMore than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments came as former president Donald J. Trump proclaimed a deep commitment to end the “epidemic” of human trafficking and to protect “innocent” victims.
Though scholars have critiqued the general protection framework for immigrant victims of trafficking, this Article unearths an understudied problem: the often-unseen role of the “shallow state.” In contrast to the much-discussed “deep state” of career bureaucrats, this Article suggests that low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to undermine protections for immigrant victims of trafficking. This Article demonstrates how administrative actors through a range of tactics, including delay, rejection, and heightened stakes, have contorted the T visa application process to make it more difficult for immigrant victims to navigate. The Article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. It warns that these bureaucratic tendencies have resulted in declining approval rates with the potential to erode protections for immigrant victims of trafficking for years to come. It, thus, prescribes not only greater attention to such practices but also administrative and judicial remedies
Subsidizing Gentrification: A Spatial Analysis of Place-Based Tax Incentives
Get PDFPlace-based tax incentives, such as the New Markets Tax Credit (NMTC) and Opportunity Zones incentives, are often used to promote investment in low-income neighborhoods. However, not all low-income neighborhoods have an equal need for investment subsidies. Subsidies for investment in already gentrifying neighborhoods, for example, may reflect inefficient inframarginal investment, and they may lead to inequitable outcomes. Critics fear that when gentrifying neighborhoods are eligible for tax incentives, they will draw investment away from the neighborhoods that need it most. However, few studies have provided empirical analysis to assess whether these concerns have merit. Through a novel geospatial analysis of the location patterns of tax-subsidized projects, this Article provides new evidence that critics’ concerns are justified.
This Article analyzes fifteen years of NMTC data to explore the location patterns of tax-subsidized projects in twenty U.S. cities. It employs two spatial analysis methods, quadrat density analysis and negative binomial regression analysis, to describe the location patterns of NMTC projects and their relationship to two variables known to correlate with gentrification: high vacancy rates and increasing rental rates. The quadrat density analysis reveals that, in most cities, NMTC project density is highest in eligible census tracts that had high vacancy rates, increasing rents, or both. The results of the negative binomial regression analysis confirmed that, in many cities, high vacancy rates or rent increases were statistically significant predictors of NMTC investment. Together, these results provide new evidence that gentrifying census tracts may draw tax-subsidized investment away from other eligible areas. They also suggest that a commonly proposed Opportunity Zones reform—to add statutory safeguards modeled after those in the NMTC—would fail to prevent tax-subsidized investment in places that are already gentrifying.
The observed spatial patterns reflect inefficient allocations, limit the NMTC program’s ability to promote equitable change, and cast doubt about whether federal regulators can effectively shape program outcomes. Opportunity Zones are likely to have similarly inefficient and inequitable outcomes. Therefore, this Article argues that statutory and administrative reforms are necessary to reduce the frequency at which tax incentives are used to subsidize investment in neighborhoods that are already gentrifying. This study has profound implications for the five-billion-dollar-per-year federal NMTC program, the $3.5 billion per year federal Opportunity Zones program, and state-level tax incentives modeled after these federal tax laws
