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Citizenship Disparities
Get PDFCitizenship is “nothing less than the right to have rights,” wrote Chief Justice Warren in his Perez v. Brownell dissent. Yet no study to date has been able to systematically investigate agency decisions to grant or deny citizenship in an administrative process called naturalization adjudication. This Article presents the first comprehensive empirical study of contemporary naturalization adjudication outcomes in the United States. Drawing on new and unique administrative data obtained through extensive Freedom of Information Act litigation, this study analyzes over 2.6 million naturalization decisions made by the U.S. Citizenship and Immigration Services (USCIS) between 2015 and 2018. These decisions were made by 87 USCIS field offices located throughout the United States. First, our analysis provides critical new insights on the extent and nature of inequalities present in the naturalization adjudication system. Specifically, our findings reveal large and troubling disparities across USCIS field offices in approval rates and adjudication times. For example, some field offices have predicted approval rates as low as 79%, while others have predicted approval rates as high as 97%. Likewise, there are wide variations in adjudication times: average predicted adjudication times are as low as 136 days in some field offices, while others are as high as 266 days. Second, our analysis shows that some of the key predictors of approvals and adjudication times are the racial, political, and economic climates of the local communities where the field offices are located. For example, approval odds are significantly lower for applications adjudicated by field offices located in White-majority counties and in Republican counties. In addition, the higher the unemployment rate, the lower the approval odds. In terms of adjudication time, one of the key predictors of longer adjudication time is the location of the field office in an enforcement-focused county. These results are consistent with our argument that citizenship is the ultimate form of social closure, and naturalization adjudication is a powerful tool of boundary policing in service of that social closure. Although the U.S. Constitution requires uniform national standards for naturalization adjudication, in practice, boundary policing occurs at the local level. Therefore, field offices’ local contexts play an important role in shaping agency decisions on naturalization applications. This study builds on growing legal scholarship that emphasizes the importance of geographical decentralization in the development of the contemporary federal administrative state. The current study’s findings make unique theoretical and empirical contributions to an emerging body of research that documents deeply troubling disparities in administrative and judicial decision-making in immigration law. We conclude by discussing some of the key policy implications of these findings for citizenship and the need for equality, consistency, and transparency in naturalization adjudication
Say It Ain’t Roe: Dobbs and Reason Bans Are Trojan Horses for the Down Syndrome Community
Get PDFIn recent times, one of the most in vogue methods for curtailing abortion rights has been through the enactment of “reason bans,” statutes precluding abortions if the procedure is being sought due to the sex, race, or potential genetic abnormality of the fetus. This Note focuses on the contemporary litigation and discourse concerning reason bans’ genetic abnormality prong. In the immediate lead-up to the Supreme Court’s ruling in Dobbs, several reason ban statutes faced facial challenges in federal court, with the plaintiffs alleging that the statutes violated Casey’s undue burden standard by imposing categorical prohibitions on pre-viability abortions. Reason ban proponents argued that the statutes’ incursions into pre-viability gestational periods was justified by the additional state interest of preventing “eugenic” medical practices. The federal suits created a circuit split, with the Sixth Circuit upholding reason bans’ constitutionality, while the Seventh Circuit set aside the challenged legislation, and the Eighth Circuit granted an en banc rehearing with no decision released yet. Then in June 2022, the Supreme Court in Dobbs simultaneously overturned Roe and Casey, turning its back on half a century of federal jurisprudence and shifting the abortion battleground to state court. This Note begins by tracing the Court’s abortion decisions before briefly addressing the flawed rationale utilized by Dobbs to justify abandoning Roe and Casey. This remains an important exercise, as many state courts utilize principles from Roe and Casey in evaluating the constitutionality of abortion regulations. This Note will proceed to analyze the previous circuit split, highlighting the lessons that state courts can implement from the reasoning in each of the federal appellate decisions. To conclude, this Note will argue that state courts should follow the Seventh Circuit in voiding challenged reason ban statutes. To support this position, this Note describes how recent developments in genetic technology make reason bans an obsolete restriction for states not imposing an absolute ban on abortion. This Note will then expound upon the unconstitutional burdens imposed by reason bans, including the perverse dismantling of the physician-patient relationship, inhibiting pregnant individuals’ access to crucial health information, and the amorphous nature of potential criminal prosecutions for physicians alleged to have violated the statute’s prohibition. These burdens are in no way mitigated by interests in preventing “eugenics,” as genetic testing is readily distinguishable from past atrocities. Finally, this Note will attempt to demonstrate that despite the impassioned statements of conservative legislatures, reason bans critically undermine Down Syndrome interests, which are better served through alternative statutory schemes such as Pro-Information legislation
Pirate Arbitration
Get PDFThe U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has transformed the American civil justice system. In a series of controversial opinions, the Court has held that the FAA preempts state law, bars class actions, and empowers companies to delegate questions about the arbitration itself to arbitrators. For decades, critics have objected that forced arbitration dilutes consumers’ and employees’ rights. However, this Article explores a byproduct of the arbitration revolution that is arguably even more troubling. Recently, criminals, opportunists, and other shady entities have started exploiting the Court’s FAA jurisprudence to accomplish goals that are illegal. The Article calls this practice “pirate” arbitration. It discusses three examples: sham arbitration administrators that sell fraudulent awards, companies that obtain rulings from crooked arbitrators that have the same effect as illegal contracts, and payday lenders that mandate arbitration in a vacuum where no federal or state law applies. The Article then explains why this trend may become a serious problem. By creating a force field around arbitration clauses and awards, the Court has made it hard to regulate sophisticated arbitration-related scams. Finally, the Article proposes a novel approach for combatting pirate arbitration. It argues that these schemes do not actually involve “arbitration” and thus do not fall within the safe harbor of the FAA
Psychological Parenthood
Get PDFFamily law in the United States is governed by an assortment of familiar legal doctrines and policies that often undermine, and sometimes sever, the relationships between children and the adults with whom children are most closely bonded. For example, the “best interests of the child” standard, which has long governed a host of legal determinations such as custody, offers only a vague and indeterminate guideline for decision-making, an approach that risks undervaluing the importance of children’s relationships to close caregivers. Similarly, courts and commentators commonly assert that the federal Constitution provides special protection to biological parent-child relationships, despite the fact that a biological requirement excludes children’s bonds with many LGBTQ parents and other nonbiological parents. Finally, the United States lacks a national legal commitment to economic support for vulnerable children and families, leaving poor children and parents without resources and at risk of family separation. When the state fails to support and protect relationships between children and the individuals who provide them with parental care, children are likely to experience developmental harms with potentially life-long damage to their physical and mental health. This Article proposes and elaborates what we term the psychological parent principle, which would replace current inadequate and indeterminate standards with a clear guideline focused on the protection of relationships between children and the individuals who provide them with consistent, predictable, and emotionally invested parental care. The psychological parent principle is explicitly grounded in both developmental science and democratic values. The psychological parent principle reflects the scientific finding that the parent-child relationship is critical to human development. The principle aims to provide an overarching guideline for law, one that protects the relationship between the child and the psychological parent, with due attention to normative considerations including equality, social inclusion, and democratic self- determination. As this Article shows, reorienting law and policy around the psychological parent principle would be especially valuable for Black, LGBTQ, low-income, and other marginalized parents and children who disproportionately suffer from the failure of the state to recognize and support parental caregiving bonds. In providing a new, overarching guideline, the psychological parent principle would reframe family law in two complementary ways. First, because it does not take as given the existing distribution of resources, the principle creates a positive mandate for lawmakers and judges to supply the material and psychological conditions necessary for successful parenting. This would require the state to distribute material resources to families and to regulate working conditions to protect parental time with children. Second, the psychological parent principle constrains legal actors from disrupting the relationship between a child and her psychological parent. The guideline directs the state to grant legal recognition to psychological parents, to protect the parent-child relationship from serious disruption or severance, and to prioritize that relationship in disputes over removal, placement, and custody. This Article illustrates how the psychological parent principle would operate by suggesting reforms in three areas of law that are foundational to children’s lives—social welfare, parentage, and custody
K Is for Contract--Why Is It, Though? A K\u27s Study on the Origins, Persistence and Propagation of Legal Konventions
Get PDFThe Bill of Lading on the Blockchain: An Analysis of its Compatibility with International Rules on Commercial Transactions
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