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Immigration Enforcement Creep in Immigrant & Employee Rights
Get PDFAs the only agency charged with enforcing the Immigration Reform and Control Act’s antidiscrimination provisions, the Immigrant and Employee Rights (“IER”) section of the Department of Justice’s Civil Rights Division plays an important role in protecting worker rights. Yet over the past decade, IER has moved from worker protection to immigration enforcement: a phenomenon this Article terms “immigration enforcement creep.”
This observation is based on ten years of data collected from IER’s settlement agreements, complaints filed, and telephone interventions. The data show that rather than protect noncitizen workers from unlawful discrimination, IER has moved its focus to enforcing immigration laws against employers who hire workers on temporary work visas. IER’s enforcement choices lead to underenforcement of the antidiscrimination provisions Congress charged it with enforcing. This Article ultimately concludes that this immigration enforcement creep goes against IER’s role as a worker protection agency and suggests principles of equitable enforcement that should guide its exercise of authority instead
Transcription of 2023 Texas A&M Law Review Symposium: More Than Sports: What Comes After NIL?
Get PDFThis transcription presents Jeffrey Kessler\u27s keynote speech at the 2023 Texas A&M Law Review Symposium on NCAA v. Alston and the future ahead
What Mediation Romantics Can Learn from the Model T (or Maybe the Chevrolet Trax)
No full textWhen mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain mediative elements have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a basic model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a car achieves the purpose of getting its riders from PointA to Point B. As with that car, it is quite possible for parties to add other desirable features to mediation in order to respond to their unique needs and aspirations. But not necessary. Meanwhile, even the most basic model of a car must meet-and regularly prove that it meets-certain safety and environmental standards. What are the analogous standards for mediation, especially when courts or contracts of adhesion require its use
Exit Through the White House: Congressional Constraints on Unilateral Presidential Withdrawal from Treaties
Get PDFWhen does the U.S. President have the constitutional authority to withdraw from a treaty unilaterally? Where the U.S. Constitution details the making but not the exiting of treaties, the U.S. Supreme Court has largely left the issue open for the political branches to resolve. Many scholars argue that modern practice supports a conclusion that the President has the practical—if not legal—power to withdraw unilaterally from an Article II treaty or congressional-executive agreement without the consent of Congress. This argument is largely premised on the claim that Congress has acquiesced to executive practice, providing a gloss on expansive executive power to end treaty relationships. Yet there is limited systematic empirical investigation as to whether and how Congress has acquiesced to (or opposed) unilateral presidential withdrawal.
Using data on congressional actions related to treaty withdrawal from the 1950s to 2020, this Article explores whether Congress has in fact acquiesced to unilateral presidential treaty termination. The data reveals that Congress is relatively active on the issue of treaty withdrawal, especially regarding security matters and arms control. The data shows that this behavior has varied over the last 70 years, with earlier actions focused on restraining the President’s power generally and later actions focused on issue areas like human rights abuses, terrorism, and arms control. Qualitative evidence also illustrates Congress’s use of formal legal and informal political means to influence presidential behavior in the context of treaty matters. This evidence challenges the premises of the argument that the President has unfettered authority to withdraw unilaterally. Moreover, it reveals the spectrum of strategies Congress employs to influence presidential behavior in areas of contested constitutional authority. The findings add to our understanding of the balance of powers related to treaty exit with implications for empirically assessing the extent of congressional acquiescence in other matters of presidential authority
Make America Healthy: Reducing High Pharmaceutical Prices Without Reducing Innovation
Get PDFCost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. Naturally, it leads to an inquiry about how best to engage in an exercise of prioritizing affordability to enable access to life-saving medications to all people as opposed to a select few. The casualty of the conundrums and conflicts that prevail between patent law and its interludes into healthcare access and trade law is unfortunate and leaves the American consumer literally unhealthy. Meanwhile, a lack of health equity has forced legislators to engage with the public health issues of their constituents to explore solutions that improve affordability and access to high-priced pharmaceuticals. One such legislative solution, the Inflation Reduction Act (IRA) of 2022, forms the backdrop for this paper.
With that background, this paper engages with simple questions. How did prices get so high in the first place? What can be done to dismantle barriers to make America healthy, literally? To answer this, the paper addresses the root causes of high drug prices. It explores how established policies and practices, which Americans fund in the first place, limit affordability and access to life-saving medications. In tracing high drug prices to their source, this paper identifies burdensome legal barriers that prevent both generic and biosimilar medications from entering the market in a timely manner. It also identifies solutions. Specifically, the paper explores whether, and if so, how, agency action between the United States Patent and Trademark Office (USPTO) and the United States Food and Drug Administration (FDA) can intervene to alleviate the burdens. To do this effectively, this paper uses the insulin story and the Humira story to discuss market-entry barriers and to provide suggestions for market entry of generic and biosimilar medications
Intellectual Property, Global Inequality, and Subnational Policy Variations
Get PDFThis chapter criticizes the oversimplification of the binary North–South debate on intellectual property, innovation, and global inequality and highlights the wide geographic, sectoral, and income inequalities within middle-income countries. It begins by explaining why the arrival of these countries has called into question the North–South debate. The chapter then moves from the widely studied subject of global inequality to the underexplored topic of national inequality. Focusing on the intellectual property context, the discussion highlights the considerable subnational variations in the economic and technological conditions of middle-income countries. To combat national inequality, this chapter concludes by recommending interventions in three areas: (1) international norm-setting, (2) national policymaking, and (3) academic and policy research
Adoption as Substitute for Abortion?
Get PDFIn Dobbs v. Jackson Women’s Health, Justice Samuel Alito relied on adoption as part of the justification for holding that abortion is not constitutionally protected: “States have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Using adoption as an adequate substitute for abortion is a long-standing strategy for the antiabortion movement; but it is often embraced by pro-choice advocates as well. This position is supportable only if the realities of adoption are ignored in favor of mythologized notions of adoption as morally superior to abortion.This piece explores the ambiguities in adoption, considering the issues of racism, patriarchy and poverty that drive children into the adoption system. It also discusses the history and philosophy literature that links adoption and abortion, and how those who favor access to abortion have ceded the morality issue to those who are antiabortion. The piece also examines the psychosocial literature about birth parents and adoptees that reveals the experiences of these members of the adoption triad, and uncovers the false premise that adoption compares favorably to abortion because it causes no harm. Overall, this piece critiques the ways in which adoption is sanitized to erase issues of gender, race and class, so as to present adoption as superior to abortion and thus justify ending abortion access
Lopez v. Cintas Corporation: Another Interstate Headache
Get PDFThis Note analyzes a 2022 Fifth Circuit opinion concerning two issues: first, whether local delivery drivers are engaged in interstate commerce, and second, who decides challenges to arbitrability. In Lopez v. Cintas Corporation, the Fifth Circuit first held that local delivery drivers are not engaged in interstate commerce because they do not play a direct and necessary role in interstate commerce. Second, the court held that the arbitrator decides challenges to the validity of arbitrability when the challenge could also, if successful, attack the validity of the entire contract. The Fifth Circuit used incorrect reasoning, overemphasizing the crossing of borders with regard to the interstate commerce issue, and it incorrectly decided the arbitrability issue because it misunderstood the Supreme Court’s test. First, although the Fifth Circuit reached the right outcome for the local delivery driver at bar, its reasoning incorrectly overemphasized the crossing of borders, thereby implicitly excluding all local delivery drivers from engaging in interstate commerce. This reasoning is contrary to both the Supreme Court’s reasoning and the consensus among other circuit courts. Second, the court misunderstood the Supreme Court’s test to determine who decides arbitrability challenges, incorrectly conflating specifically challenging arbitration with uniquely challenging arbitration. This Note begins by explaining the background and procedural posture of Lopez. It then examines prior case law, analyzes the Lopez decision in light of the surrounding case law, and finally closes with a summary of the argument
The Motivation Paradox: Exploring Copyright’s Assumptions About Creativity and the Allocation of Creative Resources
Get PDFCopyright is instrumental in promoting the progress of science by encouraging authors and other creators to produce and disseminate creative works by granting them an exclusive property right over the creative resources they produce. However, only some copyrighted works correlate with this goal. Some works do not promote a better society, while others harm society’s well-being. The existence of these works demonstrates that the legal structures in copyright law are somehow encouraging the production of works that do not correlate with the goals of progress. One reason might be that the law has not adequately defined the word “progress.” The ill-definition of progress, the grant of exclusive property rights over creative resources, and the reliance on market rewards to support the incentive to create all undermine the creation of socially impactful works that have a more direct bearing on societal progress.
This Article hypothesizes that the cause for the disconnect between creative production and societal progress is due to copyright law’s assumption that there is a single motivator for creativity, which is market rewards, when human beings are motivated to creativity for a multitude of reasons—some intrinsic, such as the innate desire to improve and make a difference, and others extrinsic, such as the motivator to make money from the market. This Article will show how artistic and creative works created by an intrinsically motivated author or creator can facilitate dialogue, include and support marginalized communities, create social change, and mobilize people for social innovation. This indicates that the content of creative works and their impact on society vary depending on whether the author or creator was intrinsically or extrinsically motivated when the work was created, meaning that motivators matter when producing works. As a result, this Article proposes that intrinsic motivators must be insulated from extrinsic ones and presents a taxonomy of normative arrangements of how creative resources may be allocated in society based on the first author’s and subsequent users’ motivation for creating works