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The Detention of Immigration Policy: How States are Commandeering DHS Enforcement Guidelines
Full text linkIn 2021, the Department of Homeland Security issued immigration guidelines that de-emphasized detention and removal of non-citizens who, aside from being undocumented, are otherwise contributing members of communities across the United States. However, Arizona, Montana, Ohio, Texas, and Louisiana challenged these guidelines, launching a nuanced legal dispute that concerned states standing under Article III, prosecutorial discretion, and nationwide preliminary injunctions. In United States v. Texas, the Court ruled 8-1 that the states lacked standing and reversed the Fifth Circuit’s nationwide injunction, but the majority opinion failed to address the other legal issues that are pressing on a rife debate about the role of states in federal immigration enforcement.
This note contends that permitting states to meddle with federal immigration enforcement could lead to perilous outcomes and erode the integrity of the entire immigration system. Thousands of non-citizens, particularly those emigrating from Central and South America, are affected by the decision of the Supreme Court, and they require a more protective answer to the questions raised in United States v. Texas
Confronting Structural Inequality in State Labor Law
Full text linkLow-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses and limitations to its scope to prevail in labor contests. To build union density and political power for low-wage workers who cannot effectively access federal labor rights, such as home health care workers, fast-food workers, and app-based drivers, unions and worker centers seeking to organize these workers have, increasingly, turned to state and local law, instead of or in addition to the NLRA. Groundbreaking state and local economic and racial justice campaigns have expanded labor rights and enabled these workers to participate in state and local labor policymaking to raise their workplace standards. But the turn to state and local government does not avoid the structural problem. Employers reproduce structural inequality in state law, often by dominating state initiatives and legislative processes, in order to limit, nullify, or coopt state and local labor law. The NLRA does not preempt these employer counterstrategies, and federal constitutional challenges to them typically fail because federal courts often view these labor contests as ordinary politics beyond constitutional scrutiny.
Mapping the structural problem in state and local labor contests underscores the importance of state law to confront it, as shown in recent legal mobilization of state constitutions by unions and worker centers to reduce structural inequality and build countervailing power. Repositioning state labor law as a potential foundation for labor revitalization has practical and theoretical implications for the future of low-wage worker organizing. State labor constitutionalism, and legal and administrative designs that encourage direct worker participation in state sectoral standard-setting and in local labor policymaking, can protect state labor policymaking from employer cooptation and nullification. These prescriptions can contribute to the foundational NLRA purpose of reducing structural inequality by building countervailing power in the states
Anti-Antisemitism Now
Full text linkOn May 25, 2023, the Biden Administration released The U.S. National Strategy to Counter Antisemitism—America’s first national strategy of this kind. In early November 2023, the White House announced the establishment of the first-ever U.S. National Strategy to Counter Islamophobia. These historic commitments respond to increases in identity-based bias incidents and expression against Jews and Muslims. Antisemitic incidents, which were already rising even before the pandemic, increased by almost 400% since the start of the Israel-Hamas war. The war also triggered a sharp upturn in Islamophobic incidents in the U.S., including the shooting of three college students and the murder of a child. Although there has been fresh contestation in the U.S. over the Israeli-Palestinian conflict, this is also a particularly pressing moment for the effective implementation of the national strategies to combat antisemitism and Islamophobia here.
This Article focuses on The U.S. National Strategy to Counter Antisemitism (hereinafter National Strategy). The National Strategy laudably recognizes that rising antisemitism—linked, as it is, to white nationalism—poses risks not only to Jews, but to the nation and to democracy. The self-professed centrality of antisemitism to the broadly racist white nationalist goal of enhanced political power in the United States makes that clear. By recognizing this, the National Strategy implicitly highlights the risks posed both by those conservatives who downplay associations with antisemites and those progressives who discount antisemitism. In centering anti-antisemitism as a national goal, the National Strategy additionally makes three key contributions: (1) by focusing on antisemitism as a broad social challenge rather than principally a problem on college campuses; (2) by its recognition of the role of social media in disseminating and amplifying antisemitism; and (3) by emphasizing the need for more empirical research aimed at the idiosyncrasies and impacts of antisemitism.
To be sure, as the Article points out, some of the National Strategy’s recommendations to reverse the normalization of antisemitism—its specific proposals regarding social media, its slant on “speaking out” and public condemnation, and its reliance on voluntary corporate sanctions—could benefit from further consideration, refinement, and empirical study. Nevertheless, it would be regrettable for American democracy if some under-analyzed policy recommendations, partisan politics, or concerns about disagreements over the Middle East were to cause the White House’s important anti-antisemitism commitment for the U.S. to be discounted as mere political theater
Shareholders’ agreements in Public Corporations in Chile: What Are We Missing Out?
Full text linkShareholders’ agreements are quite common in many jurisdictions. Theory and empirical evidence suggest that they may have a positive or a negative impact on corporate governance structures depending on companies’ characteristics and on the goals that these contracts pursue. Shareholders’ agreements may be used as Control Enhancement Mechanisms (CEM) allowing controllers to circumvent rules that favor minority investors. However, comparing to other CEM, in many countries information regarding them is scarce. Is it necessary that shareholders’ agreements in public corporations be fully informed?
We examine the case of Chile (a country that only requires to inform that a shareholder agreement exists) and compare it to Italy and Brazil cases, countries where shareholders’ agreements content is disclosed. We find out that the detail of the rules that impose or promote information might produce different results on the way that shareholders’ agreements are used. For the case of Chile, we show that its use has increased over time and that case evidence show that they may have been used to circumvent minority rights. Shareholders’ agreements play a much more important role in the control of public corporations in Chile than what has been previously discussed in corporate governance literature.
The contribution of this paper is to provide evidence in favor of the importance of mandatory rules for shareholders’ agreements disclosure and their design, not only where this information lacks, as in many developing countries, but also to reinforce the relevance of disclosure in developed markets, where the use of shareholders’ agreements in public companies is also increasing
Critical Tax Theory in The U.S., Australia, and Brazil: Current Challenges and Perspectives for the Future
Full text linkTax law has never been a neutral field. On the contrary, it impacts a range of identity axes, including socioeconomic class, race, and gender, and can act as a mechanism for maintaining the status quo or as a catalyst for social change. By examining the ongoing debate on critical tax theory in the United States, Australia, and Brazil, this Article shows that, no matter the differences found in distinct tax systems, tax law functions as a mirror of a country’s values and can be employed either to support or to disadvantage minorities.\u3c.p\u3eAmerican critical tax scholars have consistently highlighted the role of tax law in creating barriers to disadvantaged groups, whether with discriminatory intent or embedded in implicit biases. One example is recent data on how tax audits conducted by the IRS disproportionately impact Black Americans. With the growing findings in the field come several challenges still to be addressed, such as the need to provide guidance on policymaking. On the other hand, despite evolving at a slower pace, a careful look at critical tax scholarship in Australia and Brazil reveals a flourishing literature on the role of tax law in increasing inequality. Australian scholars have drawn particular attention to the gender gap, e.g., by evaluating the impact of tax expenditures on women. Brazilian scholars have explored the role of tax law in widening gender and racial inequalities, for example, by assessing regressive taxes, such as the VAT, through feminist and critical race lenses. This Article aims to contextualize the study of critical tax theory and expound on it from the viewpoints of American, Australian, and Brazilian scholars, looking closely at the concrete perspectives taken by them and challenges they might share today and in the future
Symposium: Consortium for the Study and Analysis of International Law Scholarship (SAILS): Foreword
Full text linkReligious Clause Challenges to Early Abortion Bans
Full text linkThe substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.
The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on the contested question of when life begins, but codify that belief into law. Imposing onto all Americans the religious perspective that life begins at conception should violate the Establishment Clause.
The Free Exercise Clause prevents the government from burdening people’s exercise of religion. Its protections extend to requiring religious liberty exemptions from laws that prevent religious observance. In fact, the Supreme Court has greatly expanded the availability of religious exemptions. Consequently, women whose religion counsels abortions in situations forbidden by abortion bans should be entitled to an exemption
Seeding a Movement: Indigenous Food Sovereignty
Full text linkFor many Indigenous peoples, well-being is bound up with and inseparable from the natural world. But since colonialism, Indigenous traditions and access to traditional foods or foodways have been disrupted, imperiling their health and well-being. In this Article, I discuss the role of Indigenous cosmovision/worldview and Indigenous Food Sovereignty in achieving environmental justice. Specifically, in this Article, I discuss that despite, or perhaps because of, efforts to deny Indigenous peoples’ access to healthy and culturally appropriate foods, Indigenous Food Sovereignty took a rise of preciousness in informing natural regenerative food systems, and ultimately, “holistic/collective well-being.