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The Shortcomings of the “Public Charge” Doctrine: Why the DHS Final Rule Should Be Abandoned and Why the United States Should Look to the Progressive Immigration Policies of Sweden
Get PDFThe United States has a longstanding history of denying aliens admission based on a wide range of grounds that we have deemed to demonstrate the alien would be either dangerous to society or a financial burden on the state. “Self-sufficiency” has been a basic principle of US immigration law since the country’s earliest immigration statutes. It is the contention of the Department of Homeland Security that the availability of public benefits can create an incentive for immigration to the United States at a rate that cannot be financially supported by the government. Certain European countries, such as Sweden, see a high rate of immigrant flow into their welfare state. However, in Sweden, the general policy of “self-sufficiency” is not as pertinent, and thus, the general population of Sweden welcomes aliens despite high use of public benefits.
In October 2018, DHS proposed a rule under section 212(a)(4) of the Immigration and Nationality Act that would expand the scope of the “public charge” ground of inadmissibility. The public charge doctrine dates back to the 1800’s. However, the proposed rule prescribes with specificity how it will determine whether an alien is inadmissible to the United States, by better defining, and expanding, who would fall within this category.
Whatever perceived strain that immigrants place on the welfare state should not be reason to prevent aliens from admission or citizenship in the United States. In this paper, I will analyze the history of the public charge doctrine and its intersection with the welfare state, as well as analyze the current use of public benefits by aliens. I will conduct an international comparison to the country of Sweden and analyze its Immigration and social policy. I will use these current findings and international comparisons as arguments against the DHS expansion of “public charge.
How Hard Can This Be? The Dearth of U.S. Tax Treaties with Latin America
Get PDFThe United States has fewer tax treaties with countries in Latin America and the Caribbean than the United Kingdom, France, Germany, Spain and even China have with such countries. After first describing ways in which tax treaties reduce barriers to cross-border trade and investment, this Article considers in turn various possible explanations for this situation. It examines, and rejects, the hypothesis that Latin American countries are reluctant to enter into tax treaties in general. It then considers, and rejects, the possibility that Latin American countries are opposed to in-creased trade and investment from the United States in particular. It then considers the possibility that U.S. tax treaty policy presents insurmountable difficulties to the conclusion of tax treaties. It concludes that U.S. tax treaty policies may present obstacles to successful negotiations with some, but not all, Latin American countries, suggesting that the United States might make more progress by negotiating with some smaller countries if progress cannot be made with, for example, Brazil or Argentina
The Future Is Today: Preparing the Legal Ground for the United States Space Force
Get PDFThe Space Race officially launched on October 4, 1957, when the Soviet Union placed Sputnik I, the first man-made satellite, into Earth’s orbit. The United States fired back four months later, on January 31, 1958, by launching its own satellite, Explorer I. While both superpowers’ programs facially focused on scientific research, each was funded and directed by their respective militaries. Military functions in space followed shortly, with the United States beginning to place its first reconnaissance satellites in space in 1959 as part of the Corona program. American and Soviet discussions following these initial military developments eventually led to the adoption of the Outer Space Treaty of 1967, which severely restricted the types of military activities the two powers could conduct either in orbit or in the greater reaches of space. The United States has recently created a new military branch exclusively focused on space. This new branch—the Space Force—will be greatly restricted by those early treaties
Selling Out
Get PDFWhen bankruptcy policy competes with other federal and state regulatory policies, which should take priority? Bankruptcy law, provided it is used to save a struggling business from having to close its doors. Bankruptcy\u27s supremacy, then, can preserve the debtor\u27s going concern value, save jobs, and limit the collateral damage from a business failure. But should this bankruptcy supremacy apply only when the debtor is pursuing a traditional reorganization under chapter 11, or should it also apply when bankruptcy is used to bring about a quick sale of substantially all of the debtor\u27s assets?
This Article addresses this question in the specific context of federal bankruptcy law\u27s conflict with federal labor laws, and it does so in the context of recent coal mining bankruptcies. Coal mining companies have filed bankruptcy with the goal of shedding their labor obligations to current and retired miners, and they have been successful at doing so whether they have structured their bankruptcies as traditional reorganizations or as asset sales. While the end result may look similar-in both instances, the business line is continued in some shape-the process is quite different, especially as to the balancing offederal bankruptcy and labor policies. The Bankruptcy Code\u27s balancing of these interests, properly interpreted, requires the debtor to allocate some of its bankruptcy-created value to its collective bargaining units-a requirement that debtors have managed to sidestep when they structure their bankruptcy as asset sales.
This finding has implications for bankruptcy asset sales broadly and for the role of bankruptcy judges in chapter 11. While judges should not try to draw a sharp distinction between traditional reorganizations and asset sales, they should enforce the creditor protections and distributional norms embodied in the Bankruptcy Code
Smart Homes: The Next Fourth Amendment Frontier
Get PDFUnder the third-party search doctrine, an individual does not have a reasonable expectation of privacy in information he or she voluntarily discloses to third parties. “Always on” in-home technology creates recordings of unsuspecting consumers in their most intimate spaces and sends them to third party companies and their affiliates, which makes this information subject to warrantless search by law enforcement under the third- search doctrine. The third-party search doctrine is ill-suited to the digital age, where consumers are routinely required to volunteer information to third parties in order to access digital content. This Note suggests that a warrant should be required where the government attempts to search “always on” in-home technology
Preface: International Commercial Arbitration in the United States Court of Appeals for the Eleventh Circuit
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The Commonality of Causation
Get PDFThis essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School ofLaw, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is common, or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of that claimant. For that reason, courts have often refused to certify class actions, or have otherwise been reluctant to utilize collective procedures, where issues of causation predominate the proceedings. It is thought that in such cases plaintiffs are entitled to a more tailored, individualized hearing to accurately assess causation consistent with due process. This essay questions this common-sense notion that the issue of causation is an individual issue and argues that causation is actually much more common when one examines the causation element and its proof in greater depth. The essay concludes by suggesting ways in which the commonality ofcausation can be addressed in litigation to better fulfill the deterrence and compensation objectives of the litigation
