Volume 53, Issue 4

Monitoring Immigration Enforcement

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. More

Article with Responses | View PDF

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

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. More

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Protecting Immigrant Workers Through Interagency Cooperation

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. More

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Law’s Information Revolution

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.

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

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.

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

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. More

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

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.

Note | View PDF

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

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.

Arizona Case Note | View PDF