Arizona Law Review

Monitoring Immigration Enforcement

admin — Sat, 24 Dec 2011 08:52:58 +0000

More than two-thirds of the unauthorized immigrant population—roughly 8 million out of 11.2 million—is in our nation’s workforce, and growing evidence suggests that unauthorized workers are more likely than their authorized counterparts to experience workplace-related violations. Although scholars have begun shifting their focus to the agencies empowered to regulate immigrants in the workplace, important questions remain unanswered. Why, for example, has the Department of Labor, our nation’s top labor enforcement agency, struggled to protect unauthorized workers against this exploitation despite the scope and seriousness of the problem? And why has Immigration and Customs Enforcement, our nation’s top immigration enforcement agency, resisted taking into account the labor consequences of their actions? Our ignorance is becoming increasingly indefensible given that agencies often have the final word within an immigration universe characterized by legislative stasis. A closer look reveals a peculiar dynamic: ICE has relatively little interest in regulating the relationship between employers and unauthorized workers, while the DOL has a relatively high interest but lacks the autonomy to effectively do so—a dynamic that tends to foster interagency conflict, ultimately enabling the problem of labor exploitation to persist. What is the way out? Borrowing the insights of administrative law scholars, this Article argues that increasing the ability of the DOL to monitor immigration enforcement decisions can help minimize the externalities that ICE actions ordinarily force the DOL to absorb. This monitoring framework constrains the ex ante stage of decisionmaking, complements existing immigration scholarship (which has tended to focus on ex post remedies like expanding the ability of the DOL to issue temporary visas), and pushes back on ICE’s law enforcement culture (which has traditionally resisted the incorporation of labor norms). Moreover, the monitoring framework is able to track evolving problems of coordination and to identify emerging vulnerabilities as the Executive’s immigration enforcement authority continues to grow and outpace the development of adequate constraints on the exercise of that authority.

ICE Was Not Meant To Be Cold: The Case for Civil Rights Monitoring of Immigration Enforcement at the Workplace

admin — Sat, 24 Dec 2011 08:51:34 +0000

Professor Lee’s proposal addresses ICE’s all-too-often myopic focus on aggressive workplace-based immigration enforcement at the expense of its “secondary” consideration for employees’ workplace protections. In this Response Essay, I illuminate that Congress intended worker rights considerations to be central to the federal government’s workplace-based immigration enforcement scheme, despite ICE’s actions to the contrary. In other words, ICE was not meant to be “cold” with respect to employees’ workplace protections. In particular, I expose Congress’s view that employee civil rights are a fundamental aspect of IRCA’s scheme.

While Professor Lee’s extensive focus on the DOL is certainly justified, my focus on workplace protections that are not within the DOL’s purview brings an additional labor agency into the forefront of the immigration monitoring mix. Indeed, exposing Congress’s overlooked civil rights considerations illustrates that the main federal agency in charge of civil rights in the workplace, the Equal Employment Opportunity Commission (“EEOC”), should play a key role in monitoring ICE’s workplace-based enforcement actions. Moreover, an intensive focus on Congress’s intent with respect to employee civil rights also reveals that the EEOC should play a complementary role in educating the public about employee civil rights in the immigration enforcement context.

Protecting Immigrant Workers Through Interagency Cooperation

admin — Sat, 24 Dec 2011 08:50:10 +0000

Stephen Lee’s Monitoring Immigration Enforcement offers a promising prescription for resolving the long-standing tension between the workplace enforcement priorities of the Department of Homeland Security (“DHS”) and the efforts by the Department of Labor (“DOL”) to protect the rights of immigrant workers. Lee convincingly describes—often with the aid of rich historical examples—the origins of the chronic imbalance of power between DHS and the DOL, and the limitations of past efforts to synchronize the work of the respective agencies. Lee’s proposal for interagency coordination, in the form of ex ante monitoring by the DOL of worksite enforcement decisions, is a novel contribution to existing writings on immigrants and workplace regulation. Indeed, in the current political and historic moment, when immigration enforcement is often equated with the preservation of national security, any proposal to constrain the authority of Immigration and Customs Enforcement (“ICE”) is bound to generate debate.

In this Response Essay, my objective is not to critique the core proposal that Lee advances, as I agree in principle with the concept of ex ante agency monitoring and believe that the DOL and DHS are well positioned to adopt such a framework. Rather, I seek to build on Lee’s article with reflections on the following four themes: (1) the complexity of the regulatory environment in which any interagency monitoring would take place, and the inevitable politicization of regulatory bodies; (2) the broader social and political context of immigration and labor regulation, and how that might shape collaborations between the DOL and DHS; (3) the precise circumstances under which the DOL might exercise its authority to constrain worksite enforcement actions; and (4) the significance of policy initiatives—relating to the intersection of workers’ rights and immigration enforcement—that have emerged during the administration of President Barack Obama.

Law’s Information Revolution

admin — Sat, 24 Dec 2011 08:49:53 +0000

Lawyers traditionally have conveyed legal expertise in the form of advice tailored to individual clients’ needs. This business model is reinforced by licensing and professional responsibility rules designed to ensure lawyers’ competence and loyalty to clients’ interests. An alternative model based on the sale of legal information in impersonal product and capital markets is challenging the traditional professional model. In this new world, legal information engineers would to some extent replace legal practitioners. This Article provides a theoretical intellectual property framework for the regulatory decisions that must be made as the two models collide. We show that traditional professional regulation inhibits full development of the new business model by prohibiting some of its practices and limiting intellectual property protection for legal information. We challenge this approach by showing how a fully developed legal information market could substitute for some of the protection that licensing and professional responsibility rules provide consumers without the current model’s negative effects of restricting the supply and raising the costs of legal services. We apply our analysis to some actual and potential markets in legal information.

Big Law’s Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms

admin — Sat, 24 Dec 2011 08:48:30 +0000

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It was not always this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N. Declaration on the Rights of Indigenous Peoples

admin — Sat, 24 Dec 2011 08:47:33 +0000

In December 2010, the United States endorsed the United Nations Declaration on the Rights of Indigenous Peoples. The U.N. Declaration articulates a framework of indigenous rights founded in the right to self-determination. Specific corollary rights flow from the right to self-determination. Among these is indigenous peoples’ right to “free and informed consent prior to the approval of any project affecting their lands or territories or other resources.” Currently, the United States embraces a policy of “meaningful consultation” when federal agencies undertake projects affecting indigenous peoples and their traditional lands. Such consultation is particularly significant in the context of traditional lands that have been classified as “public lands.” The consultative processes mandated by statutes such as the National Historic Preservation Act and the National Environmental Policy Act, however, fall short of adequately protecting indigenous interests within the context of large-scale extractive industries. These inadequacies are exemplified by the 30-year struggle waged by the Western Shoshone people, who currently contest a massive, open-pit cyanide heap-leach gold mine on one of their sacred mountains that is located on “public” land in Nevada. This Note proposes that the U.N. Declaration’s free, prior, and informed consent standard should be interpreted as a spectrum along which different contexts require different levels of indigenous participation. Ultimately, the United States should endorse a shift in policy toward requiring indigenous consent in the limited context of large-scale extractive industries operating on indigenous peoples’ traditional lands.

Dewsnup Strikes Again: Lien-Stripping of Junior Mortgages in Chapter 7 and Chapter 13

admin — Sat, 24 Dec 2011 08:46:11 +0000

Most individuals entering bankruptcy must choose to file under either chapter 7 (liquidation) or chapter 13 (reorganization)—with some wealthier filers only having the option of filing chapter 11. Individuals make their chapter choice based on the relative costs and benefits of each option. This Note explores one of the issues that may encourage debtors to opt for chapter 13 bankruptcy: lien-stripping of wholly valueless junior home mortgages. Based on the reasoning of two U.S. Supreme Court cases, Nobelman v. American Savings Bank and Dewsnup v. Timm, courts have generally allowed this type of lien-stripping in chapter 13 but not in chapter 7. This Note examines the application of these Supreme Court cases to the issues of whether strip off of valueless junior mortgages should be allowed in both chapter 7 and chapter 13. I argue that courts should harmonize these cases to allow strip off in both chapters because such an approach is more faithful to the language of the Bankruptcy Code and would implement better public policy.

Valid, Voidable, or Void? Default Judgments and Attorney Notification Under Rule 55(A) of the Arizona Rules of Civil Procedure

admin — Sat, 24 Dec 2011 08:45:33 +0000

The Arizona Supreme Court depublished a recent Arizona Court of Appeals case, Neeme Systems Solutions, Inc. v. Spectrum Aeronautica, LLC, on August 31, 2011. The case addressed the ambiguity in the attorney-notice requirement under Rule 55(a) of the Arizona Rules of Civil Procedure, which governs the entry of default prior to a default judgment. This Note explores possible explanations for the depublication and the ramifications of those interpretations. Specifically, the depublication indicates that the Court embraces a narrow construction of the attorney-notice provision of the rule and that a failure to comply with the requirements of Rule 55(a) renders a default judgment merely voidable rather than void.

Not a Free Speech Court

admin — Tue, 27 Sep 2011 12:08:34 +0000

Two of the most high-profile decisions in the Supreme Court’s October 2010 term were clear victories for freedom of speech. In Snyder v. Phelps, the Court considered whether the First Amendment protects the right of protestors to go to military funerals to express anti-gay messages. Matthew Snyder was a Marine who died in military service in Iraq. The members of the Westboro Baptist Church went to his funeral and, as is their practice, held up signs that condemned homosexuality and tolerance for it. Snyder’s father sued the demonstrators for intentional infliction of emotional distress and intrusion upon seclusion. A jury in federal district court ruled in favor of Snyder and the judge upheld an award of both compensatory and punitive damages.

The Supreme Court, in an 8–1 decision, concluded that the imposition of liability for such speech violates the First Amendment. Chief Justice Roberts, writing for the Court, stressed that the speech lawfully occurred on public property, did not disrupt the funeral, and involved a matter of public concern. The Court explained that there are alternatives available to state and local governments to protect privacy and sensibility at funerals, such as creating buffer zones around them, similar to what the Court has permitted around reproductive health care facilities. The case is important because the Court reaffirmed one of the most basic principles of the First Amendment: speech cannot be punished, or speakers held liable, just because the speech is offensive, even deeply offensive.

In Brown v. Entertainment Merchants Ass’n, the Court, in a 7–2 decision, struck down a California law that made it a crime to sell or rent violent video games to minors under age 18 without parental consent. Justice Scalia, writing for the Court, held that the law is an impermissible content-based restriction on speech and that the government failed to prove that the law was necessary to achieve a compelling purpose. In perhaps the strongest language to date, the Court spoke of the First Amendment rights of minors and once more refused to recognize violent speech as categorically less protected by the First Amendment. The Court made it clear that such attempts by states to restrict the sale or rental of violent video games violate the First Amendment.

Based on these cases, it is tempting to generalize that the Roberts Court is strongly protective of speech. In fact, I recently heard Baylor University President Ken Starr proclaim that this is the most free speech Court in American history. As is often the case with generalizations from a small sample, this one is inaccurate and hides the reality: the Roberts Court frequently rules against free speech claims.

Part I of this Lecture looks at the Roberts Court’s dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students, and its prisoners, and when it is claiming national security justifications. Part II examines a troubling new exception to the First Amendment that the Roberts Court has created for government speech—that the government can adopt private speech as its own and, accordingly, avoid the First Amendment. Part III analyzes the Roberts Court’s aggressive decisions protecting campaign contribution speech. A careful examination of these cases reflects the conservative majority’s hostility to campaign finance regulations, rather than a pro-speech commitment.

I am certainly not denying that the Roberts Court sometimes rules in favor of free speech claims, as it did in Snyder v. Phelps and Brown v. Entertainment Merchants Ass’n. Rather, my claim is that the Roberts Court’s overall record suggests that it is not a free speech Court at all.

An Economic Analysis of Patent Law’s Inequitable Conduct Doctrine

admin — Tue, 27 Sep 2011 12:07:20 +0000

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers, and commentators. This trend culminated most recently in Therasense, Inc. v. Becton, Dickinson & Co., an en banc decision from the Federal Circuit that revised certain aspects of the doctrine. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The model suggests, among other things, that even after Therasense, the conditions that trigger a finding of inequitable conduct are at best only a rough proxy for the conditions defining optimal disclosure. The model also illuminates how, both pre- and post-Therasense, the doctrine poorly defines many of the variables affecting a rational applicant’s decisionmaking process and thus potentially encourages risk-averse agents to overdisclose. Although the model neither confirms nor refutes critics’ claims that the doctrine routinely induces overdisclosure and excessive administrative costs, the model demonstrates how various reforms including but not limited to those adopted in Therasense, can be expected to reduce these reputed consequences. The model also suggests, however, that the need for some type of inequitable conduct doctrine may be greater in a regime like the United States, which lacks an effective system for post-grant oppositions. Conversely, if the United States adopted a post-grant opposition system, the need for a robust inequitable conduct doctrine would decline.