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Deconstructing Invisible Walls: Sotomayor\u27s Dissents in an Era of Immigration Exceptionalism
Get PDFDe-Americanization During the Trump Administration: Derivative Citizenship and Deceased Parents in the United States
Get PDFThe Trump Administration’s war on immigration will be marked in history as one replete with white supremacy and terror. Much attention has been focused in the realm of undocumented immigrants, detention centers, and family separations because of the pervasiveness of those issues and the gravity of the human rights violations occurring in the United States. However, little focus has been given to immigrants who are lawful permanent residents or naturalized citizens at risk of denaturalization and deprivation of their constitutional rights. This Note highlights the effects of the Trump Administration’s war on immigration on citizens and green card holders in the United States. This Note will analyze the Third Circuit’s recent opinion in Tineo v. Attorney General United States of America that conferred citizenship upon a lawful permanent resident born in the Dominican Republic to unwed parents amidst strong government opposition. The government presented an archaic argument in saying that the Court was without power to remedy an equal protection violation that would result in conferring citizenship because of the plenary power doctrine. It is in that context of the Trump Administration’s war on immigration that the government used an outdated interpretation of the plenary power doctrine to ensure that Tineo would not be granted citizenship. This Note will demonstrate how courts have the power to confer citizenship onto people whose constitutional rights have been violated
Ground Zero: The IRS Attack on Syndicated Conservation Easements
Get PDFOn June 25, 2020, the Internal Revenue Service (“IRS”) announced a settlement initiative (“SI”) to certain taxpayers with pending docketed cases involving syndicated conservation easement (“SCE”) transactions. The SI is the current culmination of a long series of attacks by the IRS against SCE transactions. The IRS has recently found success in the Tax Court against SCEs, but the agency’s overall legal position may be overstated. It is possible that the recent SI is merely an attempt to capitalize on leverage while the IRS has it. Regardless, the current state of the law surrounding SCEs is murky at best. Whether a taxpayer is contemplating the settlement offer, is currently involved in an unaudited SCE transaction, or is considering involvement in an SCE transaction in the future, the road ahead is foggy and potentially treacherous.
This Article attempts to shed light on the obstacles that face SCE transactions. This Article: (1) provides an overview of SCE transactions and the main attacks against them; (2) analyzes each of the IRS’s main attacks and the relevant issues that arise; (3) illustrates the relevant pro-taxpayer and anti-taxpayer cases on each issue; (4) discusses the subsequent considerations that taxpayers need to take into account and the future outlook of SCE; and (5) concludes with a summary of the Article’s findings
Integrated Estuary Governance
Get PDFEstuaries are complex, dynamic ecosystems that play a critical role in supporting crucial economic industries, such as commercial fishing and tourism, and providing the resources necessary to sustain coastal communities. A range of anthropogenic environmental stressors are threatening the health of estuaries throughout the world. Traditional top-down single resource focused environmental regulatory approaches have proved inadequate to protect and restore estuarine systems. In recent years, scientific and legal academics, as well as policymakers, have called for more holistic participatory approaches to addressing environmental challenges. Drawing on the literature on ecosystem management, integrated water resources management, collaborative governance, and adaptive management, we offer a new approach, which we refer to as Integrated Estuary Governance. Our proposal incorporates elements of other approaches that have been demonstrated to be essential in managing natural systems in general and that have particular applicability to estuarine systems.
Through in-depth case studies, we examine existing estuary programs established pursuant to the Clean Water Act’s National Estuary Program through the lens of Integrated Estuary Governance. This evaluation reveals a strong link between successful estuary management and the employment of a robust Integrated Estuary Governance approach. Extrapolation of this approach to other estuary management programs, and to other ecosystem management programs in general, in a deliberative and methodical fashion may result in greater success in protecting, managing, and restoring important ecological resources while, at the same time, ensuring that community social and economic values are protected
Mother Nature Needs Her SOX: Reviewing the Impetus and Goals of the Increased Financial Regulations of the Sarbanes-Oxley Act and How They Parallel the Needs of Today\u27s Environmental Protection Agency
Get PDFAs climate change and natural disasters appear to be increasingly prevalent across the United States, the question of how to respond to these threats looms large. Arguably, the Environmental Protection Agency (“EPA”) represents the tip of that responding spear. The agency, literally dedicated to protecting the environment, is positioned to drive industry environmental standards, set sustainable metrics, and even determine thresholds for habitable life.
Looks can be deceiving, though. This Note examines the current state of the EPA, and the minimal effect it currently has on penalizing and deterring industry environmental degradation. It specifically focuses on a number of high-profile use cases of industry pollution, and the EPA’s response. Based on the apparent impotence of those responses, this Note then draws a direct parallel to the Securities and Exchange Commission (“SEC”) during the late nineties and early aughts, before the Sarbanes-Oxley act was passed.
The corporate incentives of violating the EPA standards today directly parallel the incentives of businesses committing securities fraud back then. In short, there lacked a sufficient deterrent to counterbalance the incentives of increasing shareholder value through any means (even illegal ones).
After the financial world was rocked with the repeated scandals of corporations like Enron, Worldcom, Tyco, etc., Congress responded by passing the Sarbanes-Oxley Act. The Act has three key objectives that resonate with today’s EPA: 1) clearer accountability; 2) expanded criminal liability; and 3) enhanced criminal penalties. The Sarbanes-Oxley Act worked because it drove accountability into the executive boardroom.
The final piece of this Note replicates the model of Sarbanes- Oxley and examines the implications of a similar act in the context of the EPA through the same use cases detailed above. While the Sarbanes- Oxley Act was directed to protecting shareholder value, the EPA equivalent would have an even broader mandate, protecting the world itself
The Guiding Hand of Counsel, for a Price: Juvenile Public Defender Fees and Their Effects
Get PDFWhen he was thirteen, Jonathan, a teenager from New Hampshire, was charged with simple assault after a fight with his father. During his hearing in juvenile court, his father refused to pay the $275 New Hampshire public defender fee, and Jonathan—unable to afford the price of counsel—waived his right to an attorney. He was placed on probation and struggled to meet his probation requirements, resulting in his arrest for probation violations. Because the court was deciding whether to detain Jonathan, Jonathan was appointed a juvenile defender. The attorney brought Jonathan’s unstable home life to the judge’s attention, and the judge dismissed the case. While Jonathan was ultimately fortunate, his story illustrates how public defender fees destabilize children’s lives and leave them unrepresented at critical points during delinquency proceedings.
In 1967, the Supreme Court extended the right to counsel to juveniles during delinquency proceedings through the Due Process Clause of the Fourteenth Amendment, holding that a “juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. Since then, every state has guaranteed juveniles the right to counsel, which juveniles can usually waive if their waiver is knowing and voluntary. However, states still erect barriers to juveniles’ access to public defenders and court-appointed counsel by imposing public defender fees. Some public defender fees impose costs on the front end of juveniles’ involvement in the juvenile court system by charging juveniles and their families a fee or a co-pay to apply for a public defender. Some states, in addition to or instead of such fees, require children and their parents to reimburse the state or county for the total or partial cost of representation. Twelve states and the District of Columbia do not charge juveniles or their families for the cost of a public defender.
This Note seeks to examine public defender fees from a national viewpoint, situate them in the context of the juvenile justice system and its history, understand their deleterious impact on juveniles and their families, and suggest alternatives. Part I of this Note provides background on the development of the juvenile justice system and the juvenile right to counsel. Part II describes the Supreme Court precedents that are key to understanding public defender fee systems. It also discusses the different statutory schemes states use to impose and collect public defender fees in the juvenile system. Part III discusses the problems that public defender fees pose from doctrinal and practical standpoints. Finally, Part IV identifies various ways in which states could prevent public defender fees from chilling juveniles’ right to counsel. These include either minimizing parental influence on children’s decisions to waive counsel or eliminating public defender fees entirely
On Trust: The U.N. Security Council as Fiduciary
Get PDFPerceived failures by the U.N. Security Council have been characterized as “betrayals of trust,” which threaten to impact the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes described as public fiduciary theory). Interpreting the former precept as applicable to private interests and the latter to the public interest, this Article recognizes both precepts as applicable to relationships in which there is a legal expectation that those exercising control over another’s interests will not exploit (duty of loyalty) or squander (duty of care) those interests. The central question is whether the U.N. Security Council can be said to exist in such a relationship, either with private individuals or entities or with some iteration of the international community more broadly. By reference to recent controversies, including privatization of public assets in Kosovo, sexual exploitation and abuse by U.N. peacekeepers, Security Council vetoes in the face of atrocity and due process failures in sanctions decision-making, this Article examines the extent to which the fiduciary construct can play a useful role in reinforcing trust in the Security Council setting
Justifying Anglo-American Trusts Law
Get PDFIs the existence of trusts law within Anglo-American law justified? The literature to date does not provide a satisfactory answer. Situating the doctrinal features of trusts law within the liberal tradition of political morality, this Article suggests that trusts law is justified because it enhances personal autonomy in a unique way. It is comprehensively autonomy-enhancing, with express, constructive, and resulting trusts each playing a unique role in achieving this aim. Thus, the law provides a facility for property owners to unilaterally deal with their own property (express trusts), allows individuals the freedom to enlist others in their pursuit of their goals (agreement-based constructive trusts), and ensures that only conclusive choices have long-lasting legal effects (Re Rose constructive trusts and resulting trusts)