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The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem
Get PDFIn 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and few lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color. In late April 2023, the Biden administration temporarily paused the enrollment of new asylum applicants into the process created by the new rule, which makes this a particularly opportune moment to fix the problems with the rule.
This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. The article next explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. It concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law
A Logical Proof That the Common Good, Not Economics, Underlies Copyright
Get PDFCopyright experts endlessly debate its purpose: economic or common good. Both sides cite to judicial language backing their interpretations, and the frequency and cost of litigation between those representing the two interests have noticeably increased over recent years.
This article aims at a simpler way to resolve the dispute, by taking a step back and starting with the definition of a government. The government of a democratic republic, particularly one described as “of the people, by the people, and for the people,” has a single purpose: to address the common concerns of its people.
The following philosophical argument is a companion piece to the legal analysis found here, but instead of focusing on the law, it presents a logical proof that the common good, and not the promise of economic activity, was the motivation for US copyright. Further, that the continued commitment to the common good explains the reality of copyright in the US today
Unavoidability in U.S. Privacy Law
Get PDFWhy is U.S. privacy law structured the way it is, with a series of sectoral laws rather than a cross-sectoral law or laws? Why does U.S. privacy law protect information shared in certain contexts—such as information shared with an attorney, a healthcare provider, or a financial provider—rather than particular types of information? One possibility is that sectoral laws apply to contexts in which people typically share highly “sensitive” information containing intimate secrets or with the potential to harm them financially or psychologically.
But this Article argues that there is something else at play—that in fact, an under-discussed and underappreciated factor has been a key consideration throughout the history of U.S. privacy law: the unavoidability of information sharing. Tracing the development of several areas of sectoral U.S. privacy law over time, this Article shows that as society changed and contexts emerged in which individuals increasingly found they could not avoid sharing information about themselves with other parties, policymakers repeatedly responded by ratcheting up the privacy protections for information shared in those specific contexts.
Taking the discussion of unavoidability into the modern era, this Article ties the tradition of unavoidability consideration in U.S. privacy law to lawmakers’ current struggle to craft comprehensive privacy legislation. Recent years have seen widespread recognition that the sectoral approach is no longer adequate in the modern information economy. But legislators struggle to decide whether it is sufficient to focus on facilitating individuals’ control over their data—as U.S. privacy law historically has strived to do—or whether the law should more directly restrict the use of data in certain ways or for certain purposes. This Article argues that the current privacy legislation struggle, and the types of innovative legislative provisions being proposed, can be better explained with the aid of unavoidability analysi
Progressive Prosecution or Zealous Public Defense? The Choice for Law Students Concerned About Our Flawed Criminal Legal System
Get PDFThis Article addresses a question asked by many law students concerned about our flawed criminal legal system: should they become a prosecutor in an office run by a progressive prosecutor, or a public defender in an office devoted to zealous, client-centered (or holistic) defense? The Article starts with an anecdote about Philadelphia District Attorney Larry Krasner’s road show to recruit law students and young lawyers, and then proceeds as follows: First, this Article makes the case for progressive prosecution; then, it makes the case for zealous indigent defense; then, it identifies the obstacles and challenges for both kinds of lawyers and offers a brief comment on prosecutor and defender “personalities;” finally, it offers thoughts on who, in the end, has more power to make meaningful change
Intellectual Property and the Politics of Public Good in COVID-19: Framing Law, Institutions, and Ideas during TRIPS Waiver Negotiations at the WTO
Get PDFContext: To facilitate the manufacturing of COVID-19 medical products, in October 2020, India and South Africa proposed a waiver of certain WTO intellectual property (IP) provisions. After 18 months, a narrow agreement that did little for vaccine access passed the ministerial, despite the pandemic’s impact on global trade, which the WTO is mandated to safeguard.
Methods: The authors conducted a content analysis of WTO legal texts, key actor statements, media reporting, and the WTO’s procedural framework to explore legal, institutional, and ideational explanations for the delay.
Findings: IP waivers are neither legally complex nor unprecedented within WTO law, yet TRIPS waiver negotiations exceeded their mandated 90-day negotiation period by nearly 2 years. Waiver opponents and supporters engaged in escalating strategic framing, which justified and eventually secured political attention at head-of-state level, sidelining other pandemic solutions. The frames deployed discouraged consensus on a meaningful waiver, which ultimately favored the status quo that opponents preferred. WTO institutional design encouraged drawn-out negotiation while limiting legitimate players in debate to trade ministers, empowering narrow interest group politics.
Conclusions: Despite global political attention, the WTO process contributed little to emergency vaccine production, suggesting a pressing need for reforms aimed at more efficient and equitable multilateral processes
Dystopian Trademark Revelations
Get PDFUncovering dystopian technologies is challenging. Nondisclosure agreements, procurement policies, trade secrets, and strategic obfuscation collude to shield the development and deployment of these technologies from public scrutiny until it is too late to combat them with law or policy. But occasionally, exposing dystopian technologies is simple. Corporations choose technology trademarks inspired by dystopian philosophies and novels or similar elements of real life—all warnings that their potential uses are dystopian as well. That pronouncement is not necessarily trumpeted on social media or corporate websites, however. It is revealed in a more surprising place: trademark registrations at the U.S. Patent and Trademark Office (USPTO).
To grant registrations, the USPTO demands detailed disclosures about applied-for trademarks. These include the mark itself as well as information about how the applicant will use the mark, forcing corporations to admit their intent for their technologies. But these details do not always provide the full picture. The public can strategically supplement trademark disclosures with knowledge of the dystopian inspiration for the marks to understand corporations’ plans for their products. This Essay uses the marks PALANTIR for big data analytics, PANOPTO for classroom recording systems, and MECHANICAL TURK for on-demand work to illustrate the power of coupling trademark registrations with underlying namesakes to understand technologies’ dystopian implementations. Dystopian trademarks signal dystopian technologies, and the public is well-positioned to seek them out and develop strategies to combat their entrenchment
Beyond the Business Case: Moving from Transactional to Transformational Inclusion
Get PDFWhile workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear. Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.
This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and instead use transformational messaging that is more likely to win both hearts and minds, change structures, and ultimately drive meaningful change. Part I explains the goals of a transactional approach and the resulting disconnect at both the individual and system levels. Part II discusses the goals of a transformational approach and offers preliminary empirical evidence that suggests it is more likely to drive inclusive action. Part III lays out a future research agenda that aims to further uncover why transformational messaging is more effective and why transactional messaging may backfire, with particular attention to social psychological mechanisms
How to Interpret a Vending Machine: Smart Contracts and Contract Law
Get PDFA smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.
Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a contractual writing. Others have suggested that smart contracts might in some transactions replace legal contracts. But the relationship between smart contracts and legal contracts is more complex than either claim acknowledges. Although using a smart contract can figure into the formation of a legal contract, it is a mistake to analogize a smart contract’s code to a contractual writing. Unlike writings, code should rarely figure into to the interpretation of a legal contract; and when it does, its interpretation is different in kind. And though some have tried to use incorporation, integration or TINALEA clauses to substitute smart contracts for traditional contractual protections, it is not clear that courts would or should always enforce such provisions. And even if they do, governance by code rather than law comes at a significant cost to the parties. Smart contracts work better when they supplement, rather than supplant, legal contracts.
This article analyzes the many ways a smart contract might interact with the law of contracts by taking seriously the comparison, common in the literature, of smart contracts to vending machines. A series of thought experiments is used to explore when and how the mechanisms inside a machine, analog or digital, can affect the terms of a legal contract between its users. The resulting detailed doctrinal analysis provides support for a broader thesis about the relationship between technology, law and society. Smart contracts, though useful tools, instantiate an anemic form of human sociability as compared to the complex, even trusting, relationships for which contract law is designed
Race and Entrepreneurship: Reclaiming Narratives
Get PDFThis essay makes the case for engaging in counter-narratives and inclusive storytelling within the transactional clinic curriculum. The authors leverage lessons from Critical Race Theory to amplify the voices and experiences of underrepresented entrepreneurs and marginalized communities in both clinic seminar and selected casework. In doing so, we challenge hegemonic narratives of entrepreneurship and expose our law students to the presence and impact of interlocking systems of subordination that minimize the existence and contributions of entrepreneurs of color. We challenge our law students and ourselves to become more creative and thoughtful lawyers to a more inclusive and diverse set of client-entrepreneurs
An Originalist Theory of Due Process of Law
Get PDFAs the sole originalist on the program, my first task is to define what originalism is so that we are all on the same page. Originalism can be summarized in one sentence: the meaning of the Constitution should remain the same until it\u27s properly changed - by amendment.
Originalism is not a single theory. It is a family of theories, and that family shares two common precepts. The first is called the Fixation Thesis: the meaning of a text is fixed at the time that that text is promulgated. The Fixation Thesis is a descriptive claim about how language works and can be disputed, of course, by making the claim that this is not how language works. That language works a different way.
The second precept is normative. It is the Constraint Principle, which is the claim that the constitutional actors ought to follow the original meaning of the Constitution. Unlike the Fixation Thesis, the Constraint Principle is a normative claim, and must be defended or challenged on normative grounds. There are various normative grounds that are not mutually inconsistent on behalf of the claim that constitutional actors should follow the original meaning of the Constitution but, of course, it can be disputed on normative grounds.
In my allocated time, I cannot defend these two precepts, but I thought it would be useful to know what method I am employing when I answer the question about the original meaning of due process of law.
Let me start by addressing the question of whether the original meaning of the Constitution protects unenumerated rights. Here\u27s a hypothetical. Suppose a state statute mandating that all children be taken immediately after their birth to be raised by state-controlled nurseries, as Plato recommended in the Republic, is enacted by the requisite majority of each chamber of a state legislature and signed into law by the governor. Would a federal or state judge have the power to declare that such a statute is unconstitutional? Or let me pose the question this way: Do you have a constitutional right to raise your own children when the Constitution says nothing about such a right