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The Immigration Court: Zigzagging on the Road to Judicial Independence March 18, 2022 by Mimi Tsankov Issue 2, Printed, Volume 93 - Introduction The U.S. Immigration Court system is no stranger to criticism, and the past five years have been blistering. Concerns about hearing delays,[1] judicial professionalism,[2] case management failures,[3] pandemic health and safety procedures,[4] and politically motivated judicial hiring[5] have raised serious questions about whether the Immigration Courts can deliver access to justice and whether Immigration Judges (IJs) are judicially independent.[6] A major source of the criticisms stems from the basic structure of the court system itself.[7] The Immigration Courts are housed within the U.S. Department… {read more...}
Decitizenizing Asian Pacific American Women March 18, 2022 by Shoba Sivaprasad Wadhia & Margaret Hu Issue 2, Printed, Volume 93 - The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The… {read more...}
The Failures of Good Moral Character Determinations for Naturalization March 18, 2022 by Zachary New Issue 2, Printed, Volume 93 - This Article examines the effects of the good-moral-character requirement in naturalization proceedings. Specifically, it looks to such character requirements as a method by which a citizen polity screens out undesirable noncitizens from those who are deserving of inclusion in the “in” group of citizenship. The Article discusses historical methods of good-moral-character adjudication, and especially how such methods carried an undercurrent of forgiveness and redemption—an undercurrent lacking in the current method of statutory bars to showings of good moral character. By looking at specific examples of… {read more...}
Entrance Fees: Self-Funded Agencies and the Economization of Immigration March 18, 2022 by Daimeon Shanks Issue 2, Printed, Volume 93 - Introduction The practice of charging user fees to fund executive administrative agencies has burgeoned in the past forty years. User fees have been a feature of government administration for as long as there has been a government—postal stamps being a classic example. However, it was the Reagan Administration’s fixation with small government that spurred their efflorescence, using them as a means of raising revenue without resorting to general taxation.[1] Legal and economic theories were readily available to rationalize the implementation of fees, marshalling concepts of… {read more...}
Essential, Not Expendable: Protecting the Economic Citizenship of Agricultural Workers March 18, 2022 by Hunter Knapp Issue 2, Printed, Volume 93 - Introduction When the COVID-19 pandemic reached the United States in early 2020, the importance of agricultural workers became undeniable. Fear of food shortages seized the nation, and many people saw the shelves of grocery stores empty for the first time. On March 19, 2020, the Cybersecurity and Infrastructure Security Agency identified workers in the food and agriculture sectors as “essential critical infrastructure workers.”[1] This designation allowed agricultural workers to continue earning desperately needed wages, but these workers did so without adequate protection from COVID-19. Also… {read more...}
Pursuing Citizenship During COVID-19 March 18, 2022 by Ming Hsu Chen Issue 2, Printed, Volume 93 - Introduction Citizenship is a subject of growing interest in scholarly and policy discussions that aim to go beyond repairing the exclusionary immigration laws of the last several years to building a more inclusionary society. The essays in this symposium issue represent some of the best and brightest voices on citizenship. Their voices hail from law, sociology, political science, and history. They include university scholars, immigration practitioners, and immigrants living their lives in American society. As I shared in the keynote address, it was a pleasure—indeed,… {read more...}
Text Is Not Enough March 17, 2022 by Anuj C. Desai Issue 1, Printed, Volume 93 - In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation… {read more...}
Robophobia March 17, 2022 by Andrew Keane Woods Issue 1, Printed, Volume 93 - Robots—machines, algorithms, artificial intelligence—play an increasingly important role in society, often supplementing or even replacing human judgment. Scholars have rightly become concerned with the fairness, accuracy, and humanity of these systems. Indeed, anxiety about machine bias is at a fever pitch. While these concerns are important, they nearly all run in one direction: we worry about robot bias against humans; we rarely worry about human bias against robots. This is a mistake. Not because robots deserve, in some deontological sense, to be treated fairly—although that… {read more...}
Leveling Up to a Reasonable Woman’s Expectation of Privacy March 17, 2022 by Victoria Schwartz Issue 1, Printed, Volume 93 - Various privacy law doctrines involve a reasonable expectation of privacy or similar analyses that take into account social privacy norms. For the most part, however, neither courts nor scholars have explicitly grappled with whether courts descriptively do or normatively should consider gender in deciding what constitutes a reasonable expectation of privacy. This is despite the fact that, in various scenarios, a reasonable woman’s expectation of privacy might vary from a man’s in light of different lived experiences, biological differences, and existing societal gendered privacy norms.… {read more...}
One Step Forward, Two Steps Back: How Attorney General Review Undermines Our Immigration Adjudication System March 17, 2022 by Emma K. Carroll Issue 1, Printed, Volume 93 - Introduction On June 1, 2011, Mr. E.F.H.L., a native and citizen of Honduras, entered the United States without inspection and subsequently applied for asylum and withholding of removal based on his fear of persecution.[1] After considering only the written application and brief, the immigration judge (IJ) determined that Mr. E.F.H.L. did not demonstrate his prima facie eligibility for relief and thus refused to hold an evidentiary hearing, which would have enabled Mr. E.F.H.L. to present oral testimony and other evidence.[2] On appeal, the Board of… {read more...}

Digital Media


Is Title VII an “Anti-Discrimination” Law? February 17, 2022 by Anuj C. Desai Digital - PDF: Anuj C. Desai,[1] Is Title VII an "Anti-Discrimination" Law? Title VII of the Civil Rights Act of 1964 is commonly referred to as an “anti-discrimination” statute. At its core, we are told, it prohibits something called “discrimination.” But does it? Startlingly, the answer is no—not really. Instead, Title VII prohibits certain acts done for certain reasons. True, the reasons are precisely what everyone has long understood them to be—”because of . . . race, color, religion, sex, or national origin . . . .”[2] But the law’s prohibited acts do not… {read more...}
Organizing a Business Law Department Within a Law School May 14, 2021 by William J. Carney Digital - This article argues that legal education needs to get its act together by getting organized. Unlike the rest of the university, law schools are over a century behind in recognizing the need for the greater organization that departments can provide. Specialization, which did not exist many years ago, has become so universal that some members of any faculty either cannot understand or care about, much less govern wisely, what goes on around them. Ignorance is compounded by non-professional agendas driven by ideologies and interdisciplinary interests.… {read more...}
Bucklew v. Precythe and the Resurgence of the Method of Execution Challenge May 13, 2021 by Hannah York Digital - On October 1, 2019, Missouri began the execution of death row inmate Russell Bucklew.[1] Those present for the execution reported seeing Mr. Bucklew strapped to a gurney, the IV inserted, and a white sheet up to his chest.[2] The elevated gurney was the only sign that Missouri had attempted to accommodate his cavernous hemangioma, a rare condition resulting in the growth of blood-filled tumors in his head, neck, and throat.[3] His face, notable for the sizeable blackish-purple tumor protruding from his upper lip, was turned… {read more...}
Access to Justice for Immigrants: A Lecture Presented in Memory of Breanna Boss May 10, 2021 by Ingrid Eagly Digital - Ingrid Eagly,[1] Address to Colorado Law School on Monday, February 22, 2021 at 5:00-6:30 p.m.   The topic of today’s lecture, which was selected in Breanna Boss’s memory, is access to justice for immigrants. We gather here today at the start of a new presidential administration, but following four years that have significantly threatened access to justice for immigrants. Under President Donald Trump, a series of executive orders fundamentally restructured the immigration system and made all undocumented immigrants a priority for deportation.[2] Meanwhile, growing backlogs… {read more...}
Unclear and Unestablished: Exploring the Supreme Court/Tenth Circuit Disconnect in Qualified Immunity Jurisprudence April 17, 2021 by Josiah Cohen Digital - Since the founding, Americans have sought a perfectly calibrated government that vigorously protects, but never violates, citizens’ individual rights.[2] To accomplish this, government must balance orderly security and individual liberty. This liberty-or-security dilemma is significant to the study of the United States Constitution. Since at least the 1960s, the Supreme Court has repeatedly confronted this dilemma in the context of police use-of-force cases.[3] In these cases, the Supreme Court routinely grants summary judgment to police officers based on qualified immunity, thereby denying relief to aggrieved… {read more...}
Telehealth and Telework Accessibility in a Pandemic-Induced Virtual World November 9, 2020 by Blake E. Reid, Christian Vogler, and Zainab Alkebsi Digital - During the spring of 2020, the COVID-19 crisis began to unfold in the U.S. Legal scholars exploring the impact of the pandemic on people with disabilities focused much of their attention on triage protocols. These scholars debated the legality and ethics of using patient disability as a basis for rationing ventilators in the face of then-looming ventilator shortages at hospitals.[2] At least initially, stay-at-home orders across the country were successful in “flattening the curve” and reducing the demand for ventilators.[3] However, the pandemic’s widespread disruption… {read more...}
Democracy and the Fourth Seat: Kagan’s Jurisprudence, Stevens’s Legacy October 25, 2020 by Lauren DiMartino Digital - On October 22, 2019, Justice Elena Kagan sat down with Professor Suzette Malveaux, director of the Byron White Center for the Study of Constitutional Law, for the Eighth Annual John Paul Stevens Lecture. (Text of the full lecture can be found here.) What made Justice Kagan’s visit to Colorado Law particularly special was the opportunity for her to honor her predecessor on the bench—the namesake of the lecture series—only three months after the country lost him at the age of ninety-nine. In 2011, Justice John… {read more...}
Project Protect Food Systems’ Colorado Coronavirus Crisis Essential Food System Worker Policy Response Agenda August 20, 2020 by Alexia Brunet Marks, Hunter Knapp, Nicole Civita Digital - PROJECT PROTECT FOOD SYSTEMS: The Colorado Food System Workers Rapid Response Team is composed of immigrants, farmers, scholars, activists, unions, and workers across Colorado working to identify, elevate and address the needs of the people who contribute their labor to all parts of the food system. Federal relief directed toward the agriculture sector prioritized the needs of business owners, but largely ignored the specific vulnerabilities and needs of Food System Workers. Inattention to the plight and the health of food system workers is unsurprising but… {read more...}
Criminal Law in Crisis August 16, 2020 by Benjamin Levin Digital - On April 5, 2020, Michael Tyson, a 53-year old man arrested for a technical parole-violation, became the first reported person on Rikers Island to die from COVID-19.[2] By April 20, over two-thirds of the people incarcerated in Ohio’s Mario Correctional Institution had tested positive for the novel coronavirus, and over twenty percent of Ohio’s 12,919 confirmed cases had been traced to the state’s prison system.[3] By April 30, prisons or jails had been identified as the source of eight out of ten of largest viral… {read more...}
Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country. March 6, 2020 by Kristen Carpenter, Edyael Casaperalta, and Danielle Lazore-Thompson Digital - In 2007, following decades of advocacy by indigenous peoples, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (Declaration). This is a standard-setting document supported by the 148 member nations, including the United States, committing to the individual and collective rights of indigenous peoples. These rights include the right to self-determination, equality, property, culture, and economic well-being.[1] John Echohawk, Executive Director of the Native American Rights Fund (NARF), has said that the Declaration affirms many of the rights for which… {read more...}

 

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