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Beyond Borders: How Principles of Prison Abolition Can Shape the Future of Immigration Reform
Get PDFThis Note presents prison abolition theory and discusses how principles of abolition can be applied in the context of immigration enforcement and reform. In doing so, this Note argues for an “open borders” approach to immigration, presents several viewpoints on what such a regime may look like, and discusses how this vision can shape immigration reform efforts. In applying abolition theory to the immigration legal system, this Note uses a framework of three tenets of prison abolition. First, the assumptions upon which our current system of immigration enforcement is based, such as public safety and economic justifications, are open to questioning, and an alternate approach to migration is possible. Second, the immigration system exacts a human cost and infringes upon human dignity in ways that cannot be justified. Third, reform efforts are most effective when they envision a world beyond the current system of enforcement, rather than expanding the machinery of current enforcement efforts or merely shifting who is the target of immigration enforcement. Though it seems difficult to envision life without it, immigration enforcement as we know it is a recent invention and in many ways has proven ineffective at achieving its own purported goals. Further, the system results in significant human suffering in a myriad of ways, from the exploitation of those without status, to detention, to deportation, and beyond. As such, reform efforts that focus on who should be subject to immigration enforcement or how such enforcement should be carried out miss the opportunity to ask whether such enforcement should have a place in our society at all
Sexual Harassment in the Post-Weinstein World
Get PDFThe 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure of sexual harassment doctrine was in place by the end of the 1990s. The law, in broad brush, prohibits sexual harassment in the workplace and gives its survivors access to a variety of remedies when the employer permits it to happen. Yet today, almost four decades after the law first categorized sexual misconduct as a form of unlawful discrimination, an average American workplace can feel remarkably like a saloon in the Wild West.
This Article will explore the ways in which the #MeToo movement has affected (or might affect) institutional response to sexual harassment. This entails first understanding some early lessons from the #MeToo movement. Then, it explores the legal regime that both unequivocally treats harassment as prohibited and sometimes permits it to flourish. The Article will first consider the nature and degree of the problem, before exploring the development of sexual harassment law and the key components of the current legal doctrine designed to address misconduct. It will turn then to the ways in which existing law is inadequate and has largely failed to address sexual misconduct at work. It concludes with a consideration of whether #MeToo will push institutions harder, or at least differently, to respond to sexual harassment—and at what cost. In the end, it concludes that the #MeToo movement has brought powerful forces to bear on a problem that the law has failed to eradicate, but that larger problems of gender inequity will likely forestall further progress
Taxing Option Luck
Get PDFAs economic inequality reaches new heights every decade, academics stress the importance of the tax system in matters of equity. In contemporary winner-take-all markets, much of the massive income and wealth accumulated by the rich are the result of deliberate and calculated economic gambles that turned out in their favor. Yet theories of distributive justice such as Ronald Dworkin’s brute luck egalitarianism have committed themselves to the position that even if these market outcomes are the results of luck, the unequal outcomes are justified insofar as investors chose to take such risks.
This Article argues, in contrast to the aforementioned theories, that inequalities resulting from option luck, the luck involved in deliberate and calculated gambles, remain unjust. This theory entails novel arguments in favor of imposing additional tax burdens on the most well-off members of our society and taxing capital income by demonstrating the extent to which unequal market outcomes are undeserved. Technological developments have led to winner-take-all markets in which even small amounts of option luck can lead to a wide divergence in results. A further tax imposed on the winners of such markets helps neutralize the economic inequalities resulting from luck. Differences in capital income are partly unjust because differential returns to investments are attributable, in large part, to chance. A tax on capital income compresses the distribution of these returns by lowering the returns to winning bets (by taxing such returns) and the losses of losing bets (by allowing deductions for such losses)
ICE-d out of Court: Courthouse Arrests and the Sixth Amendment Right to a Jury Trial for Noncitizen Defendants
Get PDFImmigration enforcement has been especially brazen under the Trump administration. As part of a larger “mass deportation agenda,” and in retaliation against localities taking measures to protect immigrants, Immigration and Customs Enforcement (ICE) agents have significantly increased their presence at courthouses. As a result, ICE arrests at courthouses, or “courthouse arrests,” have instilled fear in immigrant communities and chilled participation in the legal system. While these arrests have had far-reaching impacts, preventing survivors and witnesses from accessing the court to seek relief, the focus of this Note is on the particular impact on noncitizen defendants involved in criminal proceedings. Increasingly, ICE will arrest noncitizens in the courthouse who are attempting to appear for arraignments, warrants, or important hearings in their cases. Following an ICE arrest, these noncitizens are often detained or deported, preventing them from continuing in their criminal cases and likely resulting in additional criminal sanctions for missing required court dates. This Note explores the Sixth Amendment right to a jury trial and presents a constitutional challenge to courthouse arrests based on the notion that these arrests prevent noncitizen defendants from accessing the courts, and therefore, meaningfully accessing their right to a jury trial
The Migrant Protection Protocols: A Death Knell for Asylum
Get PDFThe federal government has slowly chipped away at U.S. asylum protections over the past several decades. Moves to expand the detention and criminalization of asylum seekers in an effort to deter asylum seekers’ entry into the United States have been denounced as violations of U.S. obligations under domestic and international law.1 Yet, in 2018, the Trump administration announced the Migrant Protection Protocols (MPP), an unprecedented policy that sends asylum seekers back to Mexico to await their U.S. immigration court hearings. The MPP presents unique challenges to the due process and nonrefoulement tenets of our asylum system and has raised urgent concerns about the devolving role of the United States as a place of refuge for those in danger. As a result of the MPP, border immigration courts are even more overloaded than before, leading to abbreviated hearings and less process. Moreover, because the MPP forces asylum seekers to wait in Mexico for their court hearing, it is almost impossible for them to find an immigration attorney, let alone meaningfully collaborate with their advocate in developing the case. Since the onset of the COVID-19 pandemic in March 2020, the asylum seekers subject to the MPP face even more severe health and safety risks as they wait in dangerous camps along the border without plumbing or sanitation. The implementation of this policy has ensured that many immigrants pursuing asylum claims will not receive the process they are due under the law and must instead risk persecution. Overall, the MPP is another alarming step the U.S. government has taken towards the dehumanization and brutalization of those who have fled to the United States seeking protection
