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The Trumpet Player\u27s Lament: Rethinking The Civil Gideon Movement
No full textIn Gideon \u27s Trumpet,\u27 Anthony Lewis recounts the story of Clarence Gideon, an indigent man whose appeal to the United States Supreme Court improbably culminated with the Court holding that the right to counsel in a criminal trial was a fundamental right, one which requires the states to provide counsel to indigent criminal defendants. 2 Almost fifty years later in Turner v. Rogers,3 the Court rejected the analogous argument that the right to counsel in a civil contempt proceeding was a fundamental right where an indigent, noncustodial parent faces incarceration. This argument was at the core of the civil Gideon movement - one could hardly have imagined a better test case - and accordingly, the Court\u27s adverse holding was a major blow. But many in that movement have held out hope, and not without good reason
Reducing Reliance on Testing to Promote Diversity
No full textAs the United States experiences dramatic demographic change—and as our society\u27s income inequality continues to rise—promoting racial, ethnic, and economic inclusion at selective colleges has become more important than ever. At the same time, however, many Americans—including several members of the U.S. Supreme Court—are uneasy with explicitly using race as a factor in college admissions. The Court\u27s decision in Fisher v. University of Texas emphasized that universities can use race in admissions only when necessary, and that universities bear the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
With race-based admission programs increasingly curtailed, The Future of Affirmative Action explores race-neutral approaches as a method of promoting college diversity after Fisher decision. The volume suggests that Fisher might on the one hand be a further challenge to the use of racial criteria in admissions, but on the other presents a new opportunity to tackle, at long last, the burgeoning economic divisions in our system of higher education, and in society as a whole
Rising Arizona: The Legacy of the Jim Crow Southwest on Immigration Law and Policy After 100 Years of Statehood
No full textUnited States immigration law and policy is one the most controversial issues of our day, and perhaps no location has come under more scrutiny for the way it has attempted to deal with the problem of undocumented immigration than the State of Arizona. Though Arizona recently became notorious for its “papers please” law, SB 1070, the American Southwest has long been a bastion of discriminatory race-based law and policy – immigration and otherwise – directed toward Latinos, American Indians, African-Americans, and other non-White racial and ethnic minorities. While largely ignored by both legal and American historians, the socalled “Jim Crow Southwest” nonetheless persisted throughout the nineteenth and much of the twentieth century in both the Arizona Territory and the State of Arizona, forming the basis for, and giving shape to, laws meant to exclude and limit the participation of non-White persons in Southwestern society. The State of Arizona, the last of the forty-eight contiguous States to be admitted to the Union, marked its 100th year of statehood on February 14, 2012. A few months later, on June 25, 2012, the United States Supreme Court issued its landmark decision in United States v. Arizona, striking down the majority of Arizona’s aggressive state immigration enforcement law, S.B. 1070, as preempted by federal law. This Article discusses recent developments in Arizona immigration law and policy. By providing an overview of the history of race-based exclusion laws and policies in the Arizona Territory and the State of Arizona, it argues that Arizona’s modern anti-immigrant laws and policies are merely the newest incarnation of the State’s long history of discriminatory laws against racial and ethnic minorities, particularly Latinos and American Indians. In attempting to trace the genesis of racial animus toward non-Whites in the Southwest, Part I provides a historical overview of the Arizona Territory in the nineteenth century, including the development of the New Mexico Territory, the Confederate Territory of Arizona, and the impact of slavery and other race-based discrimination and exclusion laws in the Southwest. Part II discusses twentieth century race and immigration based policies in the Jim Crow Southwest that restricted and segregated the civil rights of non-Whites in the areas of marriage, education, and voting. Part III discusses the continuing legacy of the Jim Crow Southwest on the development of modern immigration law and policy in Arizona, and in particular, the aftermath of S.B. 1070’s passage in April 2010, Arizona’s subsequent rise as “ground zero” for state and local enforcement of immigration law in the United States, and the Supreme Court’s decisions in United States v. Arizona in 2012 and Arizona v. Inter-Tribal Council of Arizona in 2013. Finally, the article concludes by summarizing how the historical evidence presented in this paper rebuts the claim that only in recent years has Arizona begun to “drown[] in a sea of extremism”1 and become “the mecca for prejudice and bigotry,”2 and argues that Arizona has a long history of race-based exclusion laws and intolerance toward racial and ethnic minorities that has only now begun to garner attention on the national stage
When Enough is Enough: Location Tracking, Machine Learning and the Mosaic Theory
No full textSince 1967, when it decided Katz v. United States, the Supreme Court has tied the right to be free of unwanted government scrutiny to the concept of reasonable expectations of privacy.1 An evaluation of reasonable expectations depends, among other factors, upon an assessment of the intrusiveness of government action. When making such assessment historically the Court considered police conduct with clear temporal, geographic, or substantive limits. However, in an era where new technologies permit the storage and compilation of vast amounts of personal data, things are becoming more complicated. A school of thought known as “mosaic theory” has stepped into the void, ringing the alarm that our old tools for assessing the intrusiveness of government conduct potentially undervalue privacy rights. Mosaic theorists advocate a cumulative approach to the evaluation of data collection. Under the theory, searches are “analyzed as a collective sequence of steps rather than as individual steps.”2 The approach is based on the observation that comprehensive aggregation of even seemingly innocuous data reveals greater insight than consideration of each piece of information in isolation. Over time, discrete units of surveillance data can be processed to create a mosaic of habits, relationships, and much more. Consequently, a Fourth Amendment analysis that focuses only on the government’s collection of discrete units of data fails to appreciate the true harm of long-term surveillance—the composite
Legal Orphans Need Attorneys to Achieve Permanency
No full textOn September 30, 2013, there were 402,378 children in the United States foster care system.1 Since foster care is temporary, the state’s goal is to move children into permanent situations.2 For most of these children, 53%, permanency means reuniting with their biological parents.3
However, when reunification is not possible, the next preferred option is adoption.4 To promote adoption, the federal Adoption and Safe Families Act (ASFA) requires states to bring proceedings to terminate rights of parents who cannot provide stable homes for their children.5
Giving Kids Their Due: Theorizing A Modern Fourteenth Amendment Framework for Juvenile Defense Representation
No full textThis Essay advocates expansion of the right to and role of juvenile-defense counsel under the Fourteenth Amendment as articulated by the Supreme Court in In re Gault. It makes this move in light of the evolution of juvenile-court practices over time and modern understandings of adolescent development principles. In doing so it takes a different approach than many advocates and academics who have called for greater reliance on the concepts established in Gideon v. Wainwright and its progeny, relating to the right to and role of counsel in adult-criminal proceedings. Instead it suggests that standards of representation for juveniles must move beyond the limited “critical stage” and “offensefocused” analyses used under right-to-counsel doctrines that have evolved under the Sixth Amendment for accused adults. Given that many facets of juvenile-court prosecutions allow for largely unchecked discretionary action by judges and court-related actors—both before and after adjudication—it rejects a trial-centered defense framework for effective juvenile representation. These ancillary parts of the process, too frequently below the law and lawyering radar, have the capacity to threaten youthful privacy, autonomy, and liberty more than a finding of guilt itself. And given what we now know about the capacities of young people to process information and make future-based decisions, the guiding hand of counsel is essential for the entire time a young person is involved with the juvenile justice system’s web. Accordingly, this Essay urges revisiting and re-envisioning the right and role of juvenile counsel under the Fourteenth Amendment rather than repeatedly mining the Sixth Amendment to establish a more robust conception of effective juvenile-court representation. Armed with recent findings about adolescent development and competence, and in light of the unique nature of such proceedings as they have evolved over time, we should fundamentally reconsider lawyer competence within juvenile prosecutions to ensure greater justice—both procedural and substantive—for court-involved youth
Recent IRS Guidance Provides A Degree of Certainty for 403(b) Plans
No full textThe IRS has released long-awaited guidance expanding the availability of self correction for 403(b) plans and opening the pre-approved plan program. On Dec 12, 2012, the IRS released Rev. Proc. 2013-12, 2013-4 IRB 313, which expanded its self-correction program -- the Employee Plans Compliance Resolution System (EPCRS) -- for 403(b) plans. On 3/28/13, the IRS issued Rev. Proc. 2013-22, 2013-18 IRB 985, opening its 403(b) pre-approved plan program. The broader scope of correction under Rev. Proc. 2013-12 is a welcome relief to 403(b) plan sponsors, who may now take advantage of EPCRS to remedy mistakes and avoid plan disqualification in the same way available to qualified retirement plan sponsors. Rev. Proc. 2013-22 provides a way for an employer to adopt a plan and know that the plan\u27s terms comply with the Code\u27s requirements. While an employer with a sophisticated and intricate 403(b) plan might not be able to take advantage of a generic pre-approved plan, the vast majority of 403(b) plan sponsors should