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The Importance of Counting All Immigrants for Apportionment and Redistricting
Get PDFHow are non-citizens counted and accounted for in representation? Section 2 of the Fourteenth Amendment requires that all whole persons residing in a state are to be counted for apportionment and districting. Courts have interpreted Section 2’s requirement to include women (before the Nineteenth Amendment), non-citizens, and people under 18 years old. Yet today, some states are attempting to exclude non-citizens from apportionment and representation by using a citizen population calculus. This stands in contrast to more than 225 years of practice and to nearly all modern legal interpretations of representation. In landmark 1960s cases such as Wesberry v. Sanders and Reynolds v. Sims, the Supreme Court clarified the ideals of equal representation, writing that every district should have the same total population following the decennial apportionment, so that each of the 435 U.S. House districts had almost the exact same total population. As the nation’s immigrant population has increased in the last sixty years, some have argued that only eligible voters should be counted for apportionment, to the exclusion of non-citizens and even children. In 2016, the Supreme Court addressed this question in Evenwel v. Abbott, in which Evenwel challenged Texas’ use of total population and argued instead for the exclusion of non-citizens. The Court upheld Texas’ use of total population. However, it did not go so far as to say that total population is the only population that can be used, thus leaving the door open for states to potentially choose whether to count every individual residing within their borders or to count exclusively adult citizens.
This Essay examines the potential impact of excluding non-citizens in the redistricting process on the composition of districts. We show that, in moving from total population to citizen population, states with large immigrant populations, such as California, Texas, Florida, and New York, would lose Congressional seats. Further, the communities within these states that have a higher concentration of immigrants, many of which are in Los Angeles, San Jose, Houston, Miami, and New York City, would stand to lose seats in their respective state legislatures. It goes without saying that immigrants contribute greatly to their communities, pay taxes, own homes, and have U.S.-born citizen children in school systems, regardless of their own citizenship statuses. As such, immigrants are entitled to political representation as defined in Section 2 of the Fourteenth Amendment, which directs the counting of all whole persons in states. We conclude that using citizen population instead of total population in redistricting and apportionment is inconsistent with U.S. jurisprudence and would result in immigrant communities losing their constitutionally guaranteed representation. We believe the law requires counting the total population and focusing on communities of interest (COI), including immigrant communities, to allow all residents of the United States to be incorporated into the redistricting and line-drawing process to ensure fair representation
Privacy Mismanagement: Privacy Harms, Digital Market Monopolies, and Antitrust Law
Get PDFPrivacy self-management fails to protect consumer privacy. In the advent of the Internet, individuals had the option to tailor how their personal data was used throughout digital markets. However, since the digital markets are dominated by a few large conglomerates, namely Meta and Google, consumers have little choice to determine how they will use the internet in the face of the blatantly decreasing quality of privacy protection. The lack of adequate privacy protections in the digital markets harms consumers and erodes democratic institutions. Given the societal ramifications of consolidated digital markets on consumers, antitrust laws are the appropriate mechanism to remedy privacy harms and rebuild the guardrails of privacy protections, and the Federal Trade Commission should aggressively enforce these laws. Antitrust and privacy litigation should work in tandem to protect consumers who have had their personal information stolen and misappropriated, and to rebuild trust in democratic institutions
Pop Culture Depictions of Diversity in Business – Mad Men, Super Store, and Barbie
Get PDFWe have come a long way from only having women in the secretarial pool (as depicted in M ad Men), to having women and racial minorities in the workforce (as depicted in Super Store), to a company that creates a fictional world where women hold all the top positions (Barbie). Both Mad Men and Super Store are American TV shows – Mad Men was made in the present- day to depict life in the world of advertising agencies in New York in the 60s. Super Store is a series on Netflix about the issues workers face in a big company in the present day. Barbie is a big-budget film funded by Mattel, the company that created the doll called Barbie. In this article, I will argue that both shows and the movie have interesting things to tell us about present-day conversations and policy fixes to address diversity issues in corporations. While we have come a long way, problems persist. This article also seeks to make three broader points. First, pop culture has an indirect impact on policy- making in corporate law and on corporate behaviour. Second, most pop culture narratives paint corporations, big business, and entrepreneurs as the villains. However, there are exceptions to this narrative and the three shows/movies I have chosen to study here are, in some ways, exceptions to this trope. Third, contrary to the narrative of business always representing evil, corporations have, in many instances, been able to contribute positively to society, including diversity. This last point is particularly apparent when we compare the past (Mad Men) to the present (Super Store and Barbie)
Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims
Get PDFThe protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue
Debt End: The “Texas Two-Step” and the Constitution
Get PDFThe “Texas Two-Step” is a novel means of forcing a settlement agreement on mass-tort claimants. Corporations utilize the Two-Step bankruptcy strategy using a state law merger statute to split itself in two. One half of the corporation retains all the value, and the other half retains all the liabilities associated with the mass tort claims. The shell-company, which inherits the liabilities and then files a bankruptcy petition, uses the Bankruptcy Code’s powers to attempt a forced settlement on all current and future litigants and shield its financially healthy parent company in the process. Throughout this Note, I will survey the most significant Two-Step cases that have emerged in the last several years and argue that the Two-Step bankruptcy strategy is likely an unconstitutional use of the Bankruptcy Code. Eligibility for non-financially distressed, solvent debtors under section 109 of the Bankruptcy Code is likely unconstitutional as applied because it may (1) result in a regulatory taking; (2) deny mass tort claimants their due process rights under the Fifth Amendment; (3) qualify as a bad faith filing; and (4) exceed Congress’ power under the Bankruptcy Clause. I will also discuss how bankruptcy’s historical origins and the Framer’s intent may help inform what constitutes a bad faith bankruptcy filing. Along the way, the Note discusses the intricacies of the Bankruptcy Code in relation to these complex Two-Step bankruptcies and in relation to how bankruptcy law has changed over time
