Prosecutorial Discretion from the Department of Homeland Security?

Posted on Categories Immigration Law, Public2 Comments on Prosecutorial Discretion from the Department of Homeland Security?

Prosecutorial Discretion from the Department of Homeland Security? I’ll believe it when I see it. 

I spend a good amount of time reading through articles on the latest immigration buzz.  Since this summer, a lot of it has been centered on prosecutorial discretion in civil immigration enforcement. 

On June 17 of this year, Director John Morton of Immigration and Customs Enforcement (ICE) issued a memo meant to set guidelines on exercising prosecutorial discretion.  The June 17 memo, often referred to as “the Morton Memo”, builds on an earlier memo setting enforcement priorities.  The Morton Memo acknowledges that the Department of Homeland Security (DHS) has limited enforcement capacity, and that it should focus its resources on aliens that represent the largest threat toU.S. interests. 

Continue reading “Prosecutorial Discretion from the Department of Homeland Security?”

No Harm, No Foul — But How Do You Know If There Was Harm?

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Public, Seventh Circuit, U.S. Supreme CourtLeave a comment» on No Harm, No Foul — But How Do You Know If There Was Harm?

Yesterday, the U.S. Supreme Court agreed to hear a case that gives the Court an opportunity to clarify a longstanding ambiguity in harmless error law.  Even if a defendant’s procedural rights have been violated at trial, a conviction will not be reversed on appeal if the error was harmless.  However, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

Continue reading “No Harm, No Foul — But How Do You Know If There Was Harm?”

Federal Jurisdiction Over Claims of Corporate Liability Under International Law

Posted on Categories Human Rights, International Law & Diplomacy, Public, U.S. Supreme Court1 Comment on Federal Jurisdiction Over Claims of Corporate Liability Under International Law

[Editor’s Note: This month, faculty members have been posting on upcoming judicial decisions of particular interest. This is the third post in the series.]

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity. Continue reading “Federal Jurisdiction Over Claims of Corporate Liability Under International Law”

How the NBA Should Have Handled the Recent Labor Dispute

Posted on Categories Labor & Employment Law, Public, Sports & LawLeave a comment» on How the NBA Should Have Handled the Recent Labor Dispute

Most fans of professional basketball were probably delighted to learn of the recent agreement between the NBA owners and their players which will make possible a 66-game regular season beginning on Christmas Day.

However, for fans of sports law (like myself), the resolution was disappointing.  Had the players’ antitrust suit gone to trial, followed by the inevitable sequence of appeals, we might finally have received conclusive answers to some of the most perplexing questions in the field of sports law.

For example, we might have learned if the “decertify/recertify the union for negotiation leverage” strategy is really a permissible alternative under U. S. labor law, and we might have found out what sorts of owner-imposed restraints could survive “rule of reason” scrutiny under the antitrust laws.  Alas, we will simply continue to argue about the proper answers to such questions until the next major disruption of the professional sports labor-management front raises a new possibility of judicial resolution.

If I had been running the NBA, I would have responded to the NBAPA’s decertification and subsequent antitrust lawsuit by declaring the lockout over and immediately opening the training camps to the now non-unionized players.  I would have then have imposed mandatory drug testing rules and an absolutely rigid, exception-free salary cap. Continue reading “How the NBA Should Have Handled the Recent Labor Dispute”

A.B.A. Rejections of Obama Judicial Nominees

Posted on Categories Federal Law & Legal System, Judges & Judicial Process, PublicLeave a comment» on A.B.A. Rejections of Obama Judicial Nominees

Speaking through its judicial vetting committee, the A.B.A. has rejected fourteen of President Obama’s potential nominees for the federal bench. The overall rejection rate was 7.5 percent, a rate three and a half times that for the eight-year administrations of both President George W. Bush and President Bill Clinton.

Why has the A.B.A. been less enthusiastic about the Obama judicial nominees? One simple theory is that the organization is more conservative than many think. It used to be assumed the A.B.A. had a liberal bias, but the rejected nominees are Obama-style liberals.

Another theory involves the experiences and career paths of the nominees. Most were government lawyers and academics, but the A.B.A. apparently wants significant trial experience. The A.B.A., like the general public, may think that “true” lawyers are litigators.

The most troubling theory for the high rejection rate is that the A.B.A. continues to imagine a white, male federal judiciary. Eight of the fourteen rejections are African American or Hispanic, and nine are women.

President Obama could still seek Senate confirmation for his nominees, but regardless of what he decides on that score, the rejections provide new perspectives on the A.B.A. The emerging image is hardly attractive.


New Affirmative Action Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Federal Civil Litigation, Higher Education, Public, Race & Law, U.S. Supreme Court2 Comments on New Affirmative Action Cases

[Editor’s Note: This month, faculty members are posting on upcoming judicial decisions of particular interest. This is the second post in the series.]

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies. Continue reading “New Affirmative Action Cases”

Two Flaws in the SOPA

Posted on Categories Intellectual Property Law, PublicLeave a comment» on Two Flaws in the SOPA

This is the second post in a series looking at the Stop Online Piracy Act, a House bill that’s been getting a lot of attention lately. In Part I of this series I looked at Section 102 and concluded that it was largely unobjectionable. Section 102 essentially provides the DOJ with supplemental provisional remedies it can use against sites that are violating U.S. criminal laws but are beyond the effective reach of U.S. courts. There may still be valid concerns with Section 102, and I plan to address a couple in a later post, but it doesn’t seem to pose any special danger to the Internet or existing copyright law.

Then there’s Section 103. The idea behind Section 103 appears to be to provide copyright owners in a civil case with similar provisional remedies as in Section 102, following some sort of notice-and-takedown scheme reminiscent of Section 512 of the DMCA. And if all Section 103 targeted was foreign “rogue sites” as well, then there would be much less cause for concern. But Section 103 appears to go well beyond that. In contrast to Section 102, there’s nothing in the definition of the sites targeted under Section 103 — sites “dedicated to theft of U.S. property” — that limits those sites to sites outside the jurisdiction of United States courts. In fact, Section 103 seems weirdly out of place next to the more limited Section 102, and is out of sync with how defenders of the bill are describing it, which is as a narrow provision designed to combat foreign “rogue sites.” Section 103 is weird in a number of ways that suggest that it is the result of a sort of pastiche compromise between a narrow provision targeting rogue sites in civil suits and an all-out amendment of Section 512 of the Copyright Act. There’s two aspects of Section 103 in particular that I find little short of bizarre: (1) it sets up a notice-and-takedown regime that, as far as I can determine, is completely voluntary, but it uses the word “shall” in describing what recipients must do; and (2) it refers to “a cause of action under this section” without ever describing what that cause of action is. Continue reading “Two Flaws in the SOPA”

Trying to Get Away From Lawyers? Wisconsin May Not Be Such a Bad Place to Be

Posted on Categories Legal Education, Legal History, Legal Practice, Public, Wisconsin Law & Legal SystemLeave a comment» on Trying to Get Away From Lawyers? Wisconsin May Not Be Such a Bad Place to Be

The United States Bureau of Labor Statistics calculates what it calls the “location quotient” for individual occupations.  This statistic is computed on a state-by-state basis and reflects the percentage of a jurisdiction’s population employed in a particular job or profession.

The “location quotient” looks at the place in which the job is performed and not the jurisdiction in which the job holder is domiciled.  Hence, a lawyer who lived in Maryland, but practiced in the District of Columbia would be counted as a D.C. lawyer.

With a current “location quotient” of 0.65, Wisconsin is tied with Alabama for 40th place among the 51 states and the District of Columbia.  The only states in which lawyers are less “common” are North Dakota (0.40); South Dakota (0.43); Iowa (0.47); Indiana (0.54); Nebraska (0.58); Tennessee (0.59); North Carolina (0.59); Wyoming (0.59); and Mississippi (0.61).

The per capita number of lawyers in Wisconsin is significantly lower than that for its neighboring states of Michigan (0.77) and Minnesota (0.88), and it pales in comparison to Illinois (1.18).

Lawyers are, not surprisingly, most common in the District of Columbia which has a location quotient of 10.05.  Next on the list are New York (1.77); Delaware (1.49); Florida (1.32); Massachusetts (1.21); New Jersey (1.20); and Illinois (1.18).

As I pointed out a number of years ago in an article published in the Wisconsin Law Review entitled “The Wisconsin Lawyer in the Gilded Age,” there is nothing new about this phenomenon.  Wisconsin had fewer lawyers, per capita than most American states in the 19th century and the pattern has persisted into the 21st century.  One might be tempted to think that the diploma privilege had something to do with it, but the number of lawyers per capita is lower in Iowa than it is in Wisconsin, even though Iowa did away with the diploma privilege in 1884. (Iowa had followed Wisconsin’s lead and had adopted the diploma privilege for the state university law school in 1873.)

The full set of data compiled by the Bureau of Labor Statistics can be found by clicking here.

Beware Black Friday

Posted on Categories Negotiation, Public6 Comments on Beware Black Friday

In honor of the upcoming shop-a-thon known as Black Friday, I am linking to last week’s article in Newsweek about how we need to shop.  The science behind this impulse is the same that we deal with in negotiation in terms of how clients view risk, loss, and gratification.  In full disclosure, here’s a picture of  my most recent inability to delay gratification.

As the authors write,

Indeed, the choice to spend rather than save reflects a very human—and, some would say, American—quirk: a preference for immediate gratification over future gains. In other words, we get far more joy from buying a new pair of shoes today, or a Caribbean vacation, or an iPhone 4S, than from imagining a comfortable life tomorrow. Throw in an instant-access culture—in which we can get answers on the Internet within seconds, have a coffeepot delivered to our door overnight, and watch movies on demand—and we’re not exactly training the next generation to delay gratification.

Continue reading “Beware Black Friday”

U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why

Posted on Categories Criminal Law & Process, PublicLeave a comment» on U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why

The Bureau of Justice Statistics released a new report yesterday showing that the number of adults under community supervision declined by 1.3 percent in 2010.  Entitled Probation and Parole in the United States, 2010, the report summarizes the most recent national data on community supervision.  The decline in 2010 built on a smaller drop in 2009, and may point toward a long-term retreat from the massive increase in the American supervised population that occurred in the 1980′s and 1990′s.

Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults.  This compares to a supervised population of less than 1.4 million in 1980.

The supervised population includes both probationers and those released from prison to community supervision.  (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”)  The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010.  Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.

Why are fewer Americans on probation?  The report provides no definitive answers, but some clues are apparent.

Continue reading “U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why”