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The Anti-Parent Juvenile Court
Get PDFThis Article identifies and analyzes features of the juvenile delinquency court that harm the people on whom children most heavily depend: their parents. By negatively affecting a child’s family—creating financial stress, undermining a parent’s central role in rearing her child, and damaging the parent-child bond—these parent-harming features imperil a child’s healthy growth and development. In so doing, the Article argues, they contravene the juvenile court’s stated commitment to rehabilitation.
In juvenile court, fees and fines are assessed against parents, who also often must incur lost wages to comply with court orders. In addition, while youths of all economic backgrounds and races commit crimes, poor youth of color are disproportionately likely to become involved in the juvenile court. These parents, with less financial cushion, are uniquely likely to suffer as a result of imposed fees, fines, and lost wages.
Moreover, court actors regularly engage in at least three practices that infringe on parents’ dignity interests. First, judges conscript parents to act as the court’s eyes and ears, requiring regular reports about a child’s whereabouts and suspected misbehavior. Such requirements interfere with family privacy. They also deprive parents of the ability to make thoughtful and considered decisions about whether and to what extent they disclose information to state authorities that may result in restrictions on a child’s liberty and disruption of parents’ physical custodial rights over their child. Second, court actors regularly override—and sometimes fail to elicit in the first instance—parents’ views, disregarding established child development principles about the centrality of parents’ input in decisions affecting minor children. Third, courts can impose onerous requirements on parents, which are ostensibly designed to improve their parenting but lack evidence of efficacy or judicial findings of a link between a child’s misconduct and actions of the parent.
Such interference with the court’s rehabilitative aims, combined with the court’s socioeconomic and racial skew, suggest a need for more scrutiny by policymakers to eliminate those costs and harms to parents that are inequitable, unnecessary, and counterproductive
Prosecutorial Discretion and Immigration Arrest: How Criminal Arrests Set Immigration Enforcement Priorities
Get PDFProsecutorial discretion is once again at the forefront of immigration enforcement debates. In June 2022, a federal district court effectively rescinded Executive guidelines for prosecutorial discretion in immigration enforcement. The court struck down these guidelines – longstanding as a means of establishing priorities for the arrest, detention, and removal of noncitizens– on the basis that they conflicted with provisions of the INA. According to the district court, the “core” of the legal dispute centered on “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress.” The district court concluded that the Executive Branch overstepped its authority by implementing guidelines for issuing immigration detainers. In July 2022, the U.S. Supreme Court denied to stay the federal district court’s order and granted certiorari on the issue of immigration enforcement guidance.
In this essay, I seek to show that framing the debate as primarily a conflict between the President and Congress elides a core underlying issue: the extent to which domestic policing decisions set the agenda for immigration enforcement. As is now well known, immigration and criminal law are deeply intertwined fields. Criminal law plays a gatekeeping role for immigration enforcement; certain criminal convictions render noncitizens subject to both mandatory detention and mandatory deportation. Yet well before any criminal conviction, domestic police exert a key influence over immigration enforcement policy decisions. With the emergence of universal jailhouse immigration screening—which, for approximately the past decade, has made every custodial criminal arrest a site of immigration screening—changes in domestic policing practices necessarily also affect immigration screening practices. In this symposium essay, I make three points regarding the role of domestic police in immigration enforcement. First, domestic police establish the agenda for immigration enforcement; policing decisions determine who is subject to immigration enforcement in the first place. Second, immigration enforcement decisions, in turn, have a feedback effect on the criminal law enforcement system; they give domestic police and prosecutors more expansive power over civil outcomes like immigration detention. Third, a major consequence of this approach is not to reduce enforcement discretion, but rather to make the exercise of discretion less visible. These decisions, in turn, insulate immigration enforcement decisions from oversight and accountability
Automated Video Interviewing as the New Phrenology
Get PDFThis Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address the unlawful discrimination attributable to emerging workplace technologies which gatekeep employment opportunities. The Article maintains that the practice of automated video interviewing is based on shaky or unproven social scientific principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudoscience of phrenology, which enabled societal and economic exclusion through the legitimization of eugenicist and racist attitudes. After parsing the limitations of traditional antidiscrimination law to curtail emerging workplace technologies such as video interviewing, this Article argues that ex ante legal regulations, such as those derived from the late Professor Joel Reidenberg’s Lex Informatica framework, may be more effective than ex post remedies derived from the traditional employment antidiscrimination law regime.
The Article argues that one major benefit of applying a Lex Informatica framework to video interviewing is developing legislation that considers the technology’s capabilities rather than how actors intend to use it. In the case of automated hiring, such an approach would mean actively using the Uniform Guideline on Employee Selection Procedures to govern the design of automated hiring systems. For example, the guidelines could dictate design features for the collection of personal information and treatment of content. Other frameworks, such as Professor Pamela Samuelson’s “privacy as trade secrecy” approach could govern design features for how information from automated video interviewing systems may be transported and shared. Rather than reifying techno-solutionism, a focus on the technological capabilities of automated decision-making systems offers the opportunity for regulation to start at inception, which in turn could affect the design and development of the technology. This is a preemptive approach that sets standards for how the technology will be used and is a more proactive legal approach than merely addressing the negative consequences of the technology after they have occurred
A Debt of Dishonor
Get PDFIn 1825, France conditioned its grant of recognition to the new nation of Haiti on the payment of 150 million francs plus trade benefits. The payments were, at least in part, compensation for the losses that French plantation owners suffered, a key part of which was the loss of enslaved Haitians, who took their freedom via revolution. France has officially apologized and acknowledged a “moral debt” that it owes the Haitian people. But is there a legal debt that Haiti, one of the poorest nations in the world, could claim today from France, one of the richest
Local Budgets, Local Decisions: The Home Rule for the 21st Century Project\u27s State Support for Local Democracy Provisions
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Eviction Courts
Get PDFThis Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.
The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make it cheaper to pursue eviction than other forms of civil relief; (2) substandard method of service rules; (3) default rules that allow cases to be decided against tenants in their absence; (4) short turnaround times between complaint filing and trial; (5) limits on discovery procedures that might uncover evidence in support of tenants or create delay; (6) jurisdictional limits on the defenses and counterclaims tenants may raise; (7) rent bond requirements that prevent tenants from raising defenses unless they pay rent allegedly due; (8) laws structuring the provision of legal services so that pro se tenants and represented landlords are the norm; (9) laws establishing qualifications of adjudicators so they may operate without legal training; and (10) obstacles to appeals.
The Article concludes that eviction court operations reflect a legal architecture designed not to recognize tenants’ rights, and instead this legal architecture supports hierarchical relations between owners and tenants. While the urgency of the eviction crisis may appear recent, the U.S. has a long history of depriving subordinated people of homes while others profit from the scarcity and instability of housing. The design features of eviction courts serve to maintain this social order
