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Asian Americans Advancing Justice in Atlanta, Georgia
No full textSa’id Gonzalez [2L] will further AAAJ’s mission to advance civil and human rights of Asian Americans and to build and promote a fair and equitable society for all
International Institute for Democracy and Electoral Assistance Electoral Processes Team in Stockholm, Sweden
No full textCianna Phelan [2L] will contribute to supporting the protection and strengthening of elections, including improving the quality of legal and institutional frameworks, strengthening the capacity of electoral institutions, increasing inclusivity in electoral processes and enabling civil society, democracy defenders and the media to ensure the accountability of electoral institutions and the integrity of electoral processes
The Nuances of Prosecutorial Nonenforcement
No full textThe academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs between important values and principles.
This Article brings much-needed nuance to the debate surrounding prosecutorial nonenforcement. It provides a three-tiered taxonomy of nonenforcement decisions: the method of nonenforcement, the justification for nonenforcement, and the identity of nonenforcement decision makers. It also explains how different features of nonenforcement implicate conflicting values, such as individualization and consistency. By providing this taxonomy and highlighting these tradeoffs, the Article seeks to improve the terms of the debate surrounding prosecutorial nonenforcement. In so doing, it demonstrates that although abstract discussions about nonenforcement can be valuable, they are no substitute for an assessment of the substance of those decisions
Ten Commandments in the Public Square and Public Schools
No full textThe Ten Commandments are of paramount importance to the Jewish and Christian faiths, and they are viewed by many as a source of Western law. In America, they have been (and are) taught in churches and synagogues, and throughout much of this nation’s history they have been taught by parents, tutors, and teachers in private and public schools. They are regularly displayed in courthouses and statehouse grounds, and some states have desired to display them in public schools. Predictably, those who would scrub religion from the public square have argued that Ten Commandment displays on public property violate the First Amendment’s Establishment and Free Exercise Clauses. Many such separationists even object to passive displays of the Ten Commandments in public schools.
In this Article, we argue that passive displays of the Ten Commandments in public schools are constitutional. In Part I, we show that the U.S. Supreme Court has long held that the Establishment Clause must be interpreted in light of its “generating history.” Although the Court abandoned this approach in favor of the ahistorical Lemon Test in the 1970s and 1980s, that test proved to be unworkable and has since been abrogated. In recent years, the Court has instead insisted that the Establishment Clause must be interpreted in light of what it was originally understood to prohibit. Today, the Court also considers what is “deeply embedded in the history and tradition of this country.” In Part II, we demonstrate that the original understanding of the Establishment Clause permits religious language and images in public spaces. In Part III, we show that there is a long history and tradition of including religious images and language in public spaces. Particularly relevant for our argument here, we show that there is a long history and tradition of displaying the Ten Commandments in public spaces and teaching about them in private and public schools.
In Part IV, we turn to the major arguments waged against Ten Commandment displays in public schools. We demonstrate that: (a) there is no good reason to conclude that the text of the Ten Commandments utilized in most monuments and displays is sectarian, (b) that the Ten Commandments are a source of Western and American law, and (c) Stone v. Graham is no longer good law. In Part V, we contend that preventing passive displays of the Ten Commandments or other religious texts in public schools discriminates against religion and violates the antidiscrimination principles of the Constitution.
This abstract has been taken from the author\u27s introduction
The Case for Specific Performance of Personal Service Contracts
Full text linkThe per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will employees could not be subject to such a remedy and employees with definite term contracts who could be subject to an injunction are generally sophisticated, well-compensated, elite workers with specialized and often hard-to-replace skills. We argue that the traditional rule allowing specific performance where money damages are inadequate should be applied to personal service contracts in situations where the parties explicitly agree to such a remedy and there is rough equality of bargaining power, such as when employees are represented by counsel. We then apply our proposed rule to three cases, which we label The Coach, The Schoolteacher, and The Pop Star. These stylized examples represent typical employees with fixed term contracts, and we show why our proposal would award specific performance in some cases but not others
Lighten the Load: Why the Government Should Bear the Burden of Proving the Validity of an Alien\u27s Appellate Waiver During a Removal Order Collateral Attack
Full text linkWhile there is much to say about the current state of the U.S. immigration system, this Note focuses on what happens to many aliens when they are subsequently criminally charged with the felony of illegally reentering the United States. When an alien was previously subject to deportation and later indicted on criminal charges of illegal reentry, a provision in 8 U.S.C. § 1326 allows the alien to collaterally attack the underlying removal order if it was fundamentally unfair. In light of the current political conversations surrounding the U.S. immigration system, this Note advocates for ensuring that asylum and removal hearings adhere to due process requirements and recognize the human factors involved, despite the reality that the current political discourse often glosses over these factors.
This Note discusses the collateral attack process in general but focuses on a current split among the district courts within the United States Court of Appeals for the Fourth Circuit regarding which party (the government or the alien) bears the burden of proving whether an appellate waiver was knowingly and intelligently made. Part I provides necessary background information on immigration removal hearings and the rights of aliens during such hearings. Part II provides background information on 8 U.S.C. § 1326 collateral attacks and the general process involved. Part III examines the current split among district courts in the Fourth Circuit regarding the appellate waiver burden of proof and argues that the government should bear this burden, as it already does in some criminal plea agreements. Part IV explores the potential impacts of changing the burden of proof to the government during collateral attack proceedings and other potential efforts to mitigate these impacts.
This abstract has been taken from the author\u27s introduction
Picking Through the Remnants of \u3cem\u3eBrown v. Board\u3c/em\u3e to Realize the Ideal of Quality Public Education for All Children in the Post COVID-19 Era
Full text linkBrown, above and beyond eliminating the “separate but equal” doctrine, presented many socio-legal principles that were abdicated or diluted during the government’s COVID-19 response. This Article will address several strands recognized throughout the opinion’s seventy-year history by the courts and legal commentators that were illuminated during this period. First, the pursuit of quality education remains elusive for people of color and students from lower socioeconomic backgrounds. Second, public education continues to be an aspirational pathway to upward social mobility and building a democracy composed of educated citizens. Third, the anti-subordination construction, as opposed to the anti-classification interpretation, of the Fourteenth Amendment would have proven better suited to ensuring the educational progress of disadvantaged students, including those students who did not fall into an identifiable protected class. Fourth, the need for school districts with strained budgets to provide wraparound services in metropolitan and rural areas is analogous to the critique that Brown stopped short of taking a holistic approach to achieving quality public education. Desegregation in and of itself overlooked other contributing factors that negatively affected the goal of quality education.
This abstract has been taken from the author\u27s introduction
Recent Expansion of Gubernatorial Emergency Powers to Address the COVID-19 Pandemic: Examining Applications for the Climate Crisis
Full text linkWith a particular focus on the states of California and Florida, this Note delves into the leadership roles assumed by governors when addressing the global COVID-19 pandemic, evaluates the applicability of this gubernatorial strategy to the climate crisis, and examines the criticisms and constitutional challenges to expanding gubernatorial emergency powers. Part I explores the core similarities and differences between the COVID-19 pandemic and climate change. Part II addresses the failure of federal and international policy responses to both the pandemic and climate change. Part III details the states’ use of gubernatorial emergency powers to respond to COVID-19. Part IV then evaluates the viability of using gubernatorial emergency powers as a means of responding to climate change. Finally, Part V addresses the criticisms and constitutional challenges to expanding these gubernatorial powers. Ultimately, this Note aims to explore whether gubernatorial emergency powers, a vital tool used during the pandemic, could also be used to address climate change at a state level.
This abstract has been taken from the author\u27s introduction
Four Ways to Deconstruct Regulation and Undermine Democracy in the States
Full text linkA few years before the Supreme Court formally overruled Chevron, anti-administrative activists successfully prohibited judicial deference to reasonable exercises of interpretive discretion by regulatory agencies in a handful of receptive states. State governments’ treatment of this issue is likely to generate even more attention in Loper Bright’s wake. This Article presents novel case studies of four different ways in which state governments have prohibited deference to state agencies by state courts: (1) judicial decisions in Mississippi and Ohio, (2) a constitutional amendment proposed by an appointed commission and adopted pursuant to the initiative process in Florida, (3) statutes enacted pursuant to the ordinary legislative processes in Arizona and Tennessee, and (4) codification of a state supreme court decision by the state legislature in Wisconsin.
Conventional wisdom would suggest that these reforms are legally dispositive and that eliminating Chevron deference through the political process is especially democratic. Yet each case study shows that these were carefully orchestrated political power plays rather than products of reasoned deliberation or meaningful reflections of the people’s will. Proponents relied on the same anti-administrative rhetoric that has become popularized at the federal level, rather than anything distinctive about their states. And shifting policymaking authority from regulatory agencies, which serve as the preeminent sites of multilateral deliberation and contestation within our system of government, to the judiciary undermines pluralistic democracy on a more fundamental level. This Article thus contends that the resulting state laws are democratically illegitimate. It also questions the legal force of codified interpretive rules and suggests that continued judicial deference to state agencies is legally permissible, normatively desirable, and practically inevitable.
This does not mean that states must uniformly adhere to the Chevron framework, but it does challenge the prevailing view that the proper level of judicial deference to agencies is necessarily dictated or controlled by the legislature’s meta-intent or the original public meaning of framework laws. It also begs for an affirmatively democratic system of judicial review that involves both reasoned deliberation by state lawmakers and persuasive justifications by state courts. This Article explores what a democratically legitimate system of judicial review of agency exercises of interpretive discretion would entail in states with very different structural arrangements. In the process, it reconfigures the terms of the debate and draws fresh lessons for the federal system as well as the current state of federalism in the wake of Loper Bright