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Villanova Law Review     Open Access   (Followers: 1)
Violence Against Women     Hybrid Journal   (Followers: 39)
VirtuaJus - Revista de Direito     Open Access  
Vniversitas     Open Access  
Waikato Law Review: Taumauri     Full-text available via subscription   (Followers: 1)
Washington and Lee Journal of Energy, Climate, and the Environment     Open Access   (Followers: 2)
Washington and Lee Law Review     Open Access   (Followers: 2)
Washington Law Review     Free   (Followers: 2)
Washington University Global Studies Law Review     Open Access   (Followers: 8)
Washington University Journal of Law & Policy     Open Access  
Washington University Law Review     Open Access   (Followers: 2)
Western Journal of Legal Studies     Open Access   (Followers: 1)
William & Mary Environmental Law and Policy Review     Open Access   (Followers: 2)
William & Mary Journal of Women and the Law     Open Access   (Followers: 2)
William and Mary Law Review     Open Access   (Followers: 5)
Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice     Open Access  
Wirtschaftsrechtliche Blätter     Hybrid Journal   (Followers: 3)
Wroclaw Review of Law, Administration & Economics     Open Access  
Yale Journal of Law & the Humanities     Open Access   (Followers: 9)
Yale Journal of Law and Technology     Open Access   (Followers: 12)
Yale Journal on Regulation     Full-text available via subscription   (Followers: 20)
Yale Law Journal     Open Access   (Followers: 66)
Yearbook of European Law     Hybrid Journal   (Followers: 23)
Yearbook of International Disaster Law Online     Full-text available via subscription   (Followers: 1)
Yuridika     Open Access  
Zuzenbidea ikasten : Irakaskuntzarako aldizkaria     Open Access  

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St. John's Law Review
Number of Followers: 1  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0036-2905
Published by St. John's University Homepage  [1 journal]
  • Rigid Rideshares and the Driver Flexibility Myth

    • Authors: Seth Goldstein
      Abstract: (Excerpt)In 2018, Uber, Lyft, and similar organizations spent $224 million to ensure that Proposition 22 ("Prop. 22") passed in California, reclassifying gig workers as independent contractors, but with some rights not typically guaranteed to independent contractors. Through the most expensive ballot measure in U.S. history at that point, Uber and Lyft argued that to preserve flexibility for drivers, they must remain as independent contractors under the law. However, Prop. 22 did not increase driver benefits nor provide any assurances of flexibility. Many workers in California "regret casting their ballots for Prop. 22" and "feel deceived" by Uber and Lyft. Though the future of Prop. 22 is still in question, the reality for drivers after Prop. 22 continues to be dismal.Over the last ten years, Uber, Lyft, and other Transportation Network Companies ("TNC"}—companies that maintain digital applications that match potential riders with drivers in real­-time—have consistently lobbied for legislation codifying TNC drivers as independent contractors, allowing for driver exploitation. The main argument TNCs employ is that drivers must be classified as independent contractors to retain work flexibility. This Note will argue that TNC drivers do not have the independence and flexibility that TNCs tout due to algorithmic management and a push toward shift work, and that even if they did, there is nothing under the current law that would prevent employee drivers from having flexible work arrangements. While existing literature discusses the structure of TNCs and the realities for TNC drivers, it overlooks the causal connection between the inaccuracy of the legal presumption underlying TNC claims of flexibility and outcomes for drivers. This Note highlights that the flexibility narrative does not apply to many in the gig economy and the perpetuation of this myth further harms TNC drivers.Part I of this Note will briefly review the background of the independent contractor exemption to labor and employment laws in the United States. This will include the legislative history and remedial intent of the Fair Labor Standards Act ("FLSA") and National Labor Relations Act ("NLRA"). Part II of this Note will focus on the ways that TNCs have garnered support and societal reliance on the flexibility narrative. This narrative has strong currency among current and prospective drivers, the general public, legislators, and judges.Part III of this Note will take a critical lens to the flexibility narrative to show that it has little merit given the realities of work for TNC drivers. TNC drivers have an inherent lack of agency over their schedule, location, and performance of work due to TNC incentives toward algorithmic management and shift work. Then, this section will examine the narrative under current law to show that employee status does not preclude flexibility and that the narrative perpetuates a conclusion that defies logic. Part IV of this Note will then analyze ways that rideshare driver advocates can respond to the flexibility narrative and address its flaws.
      PubDate: Tue, 18 Jun 2024 11:40:04 PDT
       
  • Protecting Unsanctioned Street Art Under the Visual Artists Rights Act of
           1990

    • Authors: Thomas Goddard
      Abstract: (Excerpt)Before 2013, artists and art enthusiasts would flock to a dilapidated building in Long Island City to view and engage with a vast collection of graffiti and street art murals. The site was filled with over two decades' worth of murals created by legendary street artists such as "Blade" and "Lady Pink." The building, with artists having free reign to paint on the walls of the 200,000 square foot space, became a mecca for graffiti and public art. The community would come in droves to experience the vibrant art and watch performances by rappers and dancers from around the world. A once barren building had become a space revered around the world for its contributions to public art. So when word began to spread that the owner of the building planned to raze the 5Pointz building, the artists sued to protect their art.In 2013, before the courts could hear the artists' case, the building's owner whitewashed the art without warning in the middle of the night. Overnight, the site was returned to its previous state as a barren abandoned building and decades' worth of art was destroyed. Today, instead of a bustling and vibrant art scene, the site is home to a gray high-rise luxury apartment building. The events at 5Pointz were met with public outrage as New York City saw a unique and highly regarded forum for street art replaced by yet another luxury building. The case led to intrigue in the legal community as scholars and courts tried to gauge the level of protections that street artists should be afforded under the law.This Note argues that, in the context of street art affixed to buildings, the artist should be granted the moral rights protections embodied in the Visual Artists Rights Act of 1990 ("VARA"), regardless of whether the artist received permission from the property owner to install the art. Part I of this Note provides a background on the increasing importance of street art and the doctrine of moral rights that is central to VARA. This section also examines the language of VARA and the legislative history that prompted Congress to enact it. Part II of this Note explains the insufficiencies of VARA as it is applies to street art in its current formulation. This section also outlines the problems that federal courts have encountered when analyzing street art under VARA. Finally, Part III proposes a solution to clear up the ambiguity in VARA and provide more clarity and predictability for artists, property owners, and courts. This section argues that unsanctioned street art is a form of art that should be protected under VARA and that this approach aligns with the text and legislative history of VARA. This section also explores the public policy concerns that support this conclusion and addresses the disadvantages to this approach. This Note concludes by proposing the addition of a new provision to VARA that specifically addresses the issue of a building owner's consent for art incorporated into buildings and would clear up the insufficiencies in the current law.
      PubDate: Tue, 18 Jun 2024 11:40:01 PDT
       
  • The (Un)Fair Credit Reporting Act: How Courts Have Undermined the
           Protections of the FCRA

    • Authors: Jagjot Singh
      Abstract: (Excerpt)In 2001, George Saenz ("Saenz") incurred a medical bill amounting to $512.31. Thereafter, Saenz failed to make timely payments, and the bill went into debt collection. The debt was sold to NCO Financial Systems, Inc. ("NCO"), a creditor, and "NCO accepted a compromise payment [amount] of $333 [as] full satisfaction." In 2003, Saenz requested a copy of his credit report from Trans Union, a credit reporting agency. The report listed the $512.31 debt as outstanding, in error, which Saenz disputed. Trans Union initiated an automated consumer dispute verification ("ACDV") procedure, a system that compares the credit reporting agency's data to data provided by the creditor. The system wrongfully verified the information and Trans Union did not amend the credit report. Saenz disputed again with further evidence of payment, and Trans Union initiated a second ACDV without providing the evidence to NCO. The ACDV verified the information again, and Saenz's credit report continued to wrongfully list the debt.Saenz's story is shared by many others. The Fair Credit Reporting Act ("FCRA") is meant to protect consumers like Saenz. The FCRA imposes a duty on credit reporting agencies to conduct a reasonable reinvestigation when a consumer disputes the accuracy of their individual consumer report. The federal courts have had to decide, under the FCRA, what a reasonable reinvestigation by a credit reporting agency entails when the parties have a legal dispute about the accuracy of information within an individual's consumer report. Furthermore, federal courts have had to decide whether a credit reporting agency can conclude that an item is accurate when the parties have a legal dispute and the credit bureau has not determined that the furnisher is right on the law.This Note argues that the circuit courts have made the wrong decision in holding that credit reporting agencies are not required to conduct a reasonable reinvestigation when the disputed claim is of legal nature. Further, this Note asserts that based largely on the statutory text and the FCRA's purpose, regardless of what the nature of the dispute is (factual or legal) the credit reporting agencies are required to conduct a reasonable reinvestigation.Part I of this Note first introduces the FCRA, and the development and history of credit reporting. Part II examines the FCRA's purpose, legislative history, and relevant textual provisions. Part III lays out the basic framework for the dispute process that consumers go through to have an error in their consumer report corrected. This Part also walks through the studies conducted over the last two decades showing the prevalence of inaccuracies contained in these reports. Part IV examines three circuit court decisions that this Note argues came to the wrong conclusion. Finally, Part V examines why these holdings are contrary to the purpose, legislative history, and text of the FCRA.
      PubDate: Tue, 18 Jun 2024 11:39:58 PDT
       
  • A Simple Solution to an Infinite Problem: Curbing Arbitration Provisions
           That Exceed the Scope of the Federal Arbitration Act

    • Authors: Michael Russo
      Abstract: (Excerpt)In 2012, Diana Mey opened a new cell phone line with AT&T Mobility LLC ("Mobility"), the AT&T, Inc. ("AT&T") subsidiary responsible for AT&T's mobile services business in the United States. This required Mey to enter into the AT&T Wireless Customer Agreement, which contained an arbitration clause covering "all disputes and claims" "arising out of or relating to any aspect of the relationship[.]" Further, it applied as between each party's respective "subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Devices under this or prior Agreements between us." In case there was any doubt, the agreement was "intended to be broadly interpreted." This is what's known as an "infinite arbitration clause": a provision that "mandate[s] arbitration for all disputes between any related party in perpetuity."In 2015, AT&T acquired DIRECTV, LLC ("DIRECTV"), making DIRECTV an "affiliate" of Mobility under AT&T's corporate umbrella. In 2017, Mey filed suit against DIRECTV, alleging that she had received numerous unauthorized "robocalls" from DIRECTV in violation of the Telephone Consumer Protection Act ("TCPA"). DIRECTV responded by invoking the arbitration clause in Mey's AT&T Wireless Customer Agreement that she had signed with Mobility (a "Mobility Contract") in 2012, and moved to compel arbitration. The district court denied the motion, and DIRECTV appealed. The Fourth Circuit reversed, holding that Mey had formed a valid agreement to arbitrate her TCPA claim with DIRECTV, a company of which she was never a customer, and which was not affiliated with AT&T when she signed the contract containing the arbitration clause ("container contract") in 2012.
      PubDate: Tue, 18 Jun 2024 11:39:56 PDT
       
  • Low-Income Litigants in the Sandbox: Court Record Data and the Legal
           Technology A2J Market

    • Authors: Claire Johnson Raba
      Abstract: (Excerpt)Katrina was a community college student with two children, trying to juggle work, childcare, and school. During class in the spring of 2018, her phone buzzed incessantly. She looked down to see a message from her roommate saying a process server had shown up at the house to deliver a summons and complaint, naming Katrina in a lawsuit filed in county court by a debt collection company she had never heard of. Katrina turned to the internet for help and found herself overwhelmed with advertisements that began to pop up in her social media feeds trying to get her to enroll in debt settlement companies, or offering help filing bankruptcy, with or without a lawyer. Katrina didn't know which of these tools to trust, and the court self-help website was overwhelming and full of confusing information that was hard to read on her mobile phone. Katrina is one of the estimated 71 million people in the United States with debt in collections and was one of almost a quarter of a million Californians sued for debt in 2018, almost all of whom have to navigate a state civil court system as unrepresented litigants against professional debt collection lawyers.Consumer debt collection cases comprise an increasing percentage of the dockets of most state civil courts in the United States. In California, over the last ten years, debt collection cases totaled an average of 20% of all cases filed, with debt cases rising to 37% of all civil filings in 2019. It is estimated that of the 71 million consumers who have debt in collections, 15% were sued in the last year. That means, according to the research of the Aspen Institute, an estimated 12 million people were sued across the United States to collect a consumer debt in the last year (most commonly credit card, medical debt, auto deficiency, or other consumer unsecured debt). The exact number of people sued on consumer debt cases in state courts each year is not known, because these data points are lost in a myriad of state court case management systems. Researchers and advocates know the exact number of businesses and consumers litigating in federal court, through the unified federal court management system PACER, and a rising number of data analytics companies, from Bloomberg to Lex Machina and Ravel Law, promise law firms and corporations ever-detailed information about judicial behavior and case trends. Also available through the federal PACER system is docket-level information about consumer bankruptcy filings, leading to empirical analysis of legislative changes to the bankruptcy code, but in the area of civil justice, as administered by state courts, there is a "severe data deficit." Recently, states have moved to obtain better criminal case record data in recognition of the necessity for empirical data as a predicate for crafting criminal justice policy, but for many types of civil cases, access-to-justice scholars and other vital stakeholders do not know what is happening in many state courts, particularly in states with disaggregated case management systems. Recently released tools such as FastCase, Docket Alarm, Lexis Advance Courtlink, and Westlaw Docket Search have access to some state civil filings, but these databases of state court records are only as complete as the records states choose to make available through online access. Access may diverge by county within a state, including California, where some counties and case types are available online while others are not.
      PubDate: Tue, 18 Jun 2024 11:39:52 PDT
       
  • Problems With Authority

    • Authors: Amy J. Griffin
      Abstract: (Excerpt)Judicial decision-making rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Because weight-of-authority rules are largely informal and almost entirely unwritten, we lack a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decision-making rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes. These norms of authority are largely invisible to many, including parties appearing before the courts. They govern the construction of every judicial decision, but they are not the product of design. As a whole, this body of norms—a foundational set of unwritten insiders’ rules created without deliberation by an elite set of judges—is both problematic and surprisingly unexamined.Imagine a game of Scrabble where only one of the players determines the value of the letters. Add that the player setting values does not have to tell other players what the letters are worth. Finally, add that the player can change the letter values at any time during the game, even after it is finished. Creating and adjusting values is what judges do with what I call “weight-of-authority rules,” which lie at the heart of judicial decision-making.Weight-of-authority rules are almost entirely “unwritten law,” or “Lex non Scripta,” not enacted in a traditional positive law form. There are no constitutional provisions, no regulations, nor any legislation governing the weight of legal authority. The principle of stare decisis is often expressed in judicial opinions, but it did not originate in any particular case. Instead, like almost all rules related to the weight of authority, stare decisis emerged from the social practices of the judiciary, with no clear consensus on when it attained its current form. There is no textual source for the vast majority of authority practices; there never has been. Yet rules on the weight of authority are widely considered to be, without question, authoritative legal rules. We do not have a law that tells us the Constitution is valid; we accept that it is so. Similarly, the rules that tell us what else counts as law rest entirely on our acceptance of them. It is an obvious yet often unseen truth, like the water the proverbial fish swims in when it asks, “what is water'”
      PubDate: Tue, 18 Jun 2024 11:39:50 PDT
       
  • Examining Patent Eligibility

    • Authors: Charles Duan
      Abstract: (Excerpt)A firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently turned to empirical analysis of patent examination data showing major changes to patent examination outcomes after Alice, to argue that the decision had dramatic and negative consequences in its immediate wake. These criticisms and empirical analyses are influencing policy: Senator Thom Tillis introduced legislation amending § 101 on June 22, 2023.Viewing Alice in isolation, its effects seem obvious: increases in rejections under § 101 and decreases in granted patents in fields such as computer software that the decision directly addressed. Yet context matters, and the relevant context here—the development of patent eligibility law before the 2014 decision—has gone largely unstudied. Indeed, at least some commentators assume that the pre-Alice period was a relatively peaceful time for subject matter eligibility with little doctrinal development other than the Supreme Court’s interventions.In this Article, I challenge the failure to consider this context in understanding the impact of Alice, and consequently challenge the assumption that Alice was a major and unprecedented change at all. Instead, I posit a novel alternate account of § 101’s development, in which the key turning point was a little-noticed 2011 Federal Circuit decision called Ultramercial, LLC v. Hulu, LLC (“Ultramercial I”). That case revived an archaic and controversial doctrine of software patent eligibility that spawned a wave of patents particularly directed to methods of doing business. Alice, three years later, is better understood as a correction of this erroneous appellate decision and a restoration of pre-2011 eligibility law—hardly the revolution that Alice has been made out to be.
      PubDate: Tue, 18 Jun 2024 11:39:47 PDT
       
  • Fee Shifting, Nominal Damages, and the Public Interest

    • Authors: Maureen Carroll
      Abstract: (Excerpt)Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that deprived Plaintiff Joseph Davis Farrar of a civil right.’ ”The jury’s verdict did not specify which of Hobby’s actions were unlawful or which of Farrar’s rights were violated. Whatever the offending conduct might have been, the jury found that it had not proximately caused any damages to Farrar. The district court thus entered judgment against Hobby for nominal damages. Farrar then sought attorney’s fees under 42 U.S.C. § 1988, which entitles a civil rights plaintiff who is a “prevailing party” to recover a “reasonable” attorney’s fee from the defendant.By enacting statutes like Section 1988, Congress has made pro-plaintiff fee shifting available in civil rights litigation and other areas in which the government relies on private enforcement to further public goals. Recognizing the role of private litigation in these statutory schemes, the Supreme Court of the United States has referred to plaintiffs in fee-shifting cases as “private attorney[s] general.” It is sometimes said that these private attorneys general fill enforcement gaps left by public actors, but in many of these areas, private lawsuits vastly outnumber government actions. Accordingly, it would be more accurate to describe government actions as the gap-filler and private enforcement as the main event.
      PubDate: Tue, 18 Jun 2024 11:39:44 PDT
       
  • Volume 97, 2023, Number 1

    • PubDate: Tue, 18 Jun 2024 11:39:38 PDT
       
  • Keep Your Fingerprints to Yourself: New York Needs a Biometric Privacy Law

    • Authors: Brendan McNerney
      Abstract: (Excerpt)Imagine walking into a store, picking something up, and just walking out. No longer is this shoplifting, it is legal. In 2016, Amazon introduced their “Just Walk Out” technology in Seattle. “Just Walk Out” uses cameras located throughout the store to monitor shoppers, document what they pick up, and automatically charge that shoppers’ Amazon account when they leave the store. Recently, Amazon started selling “Just Walk Out” technology to other retailers. Since then, retailers have become increasingly interested in collecting and using customers’ “biometric identifiers and information.” Generally, “biometrics” is used to refer to “measurable human biological and behavioral characteristics that can be used for identification, or the automated methods of recognizing an individual based on those characteristics.” With the COVID-19 pandemic resulting in more contactless payment, the commercial use of biometric identifiers and information has grown exponentially. As biometric technology is constantly evolving, so is its definition.Some examples of physical characteristics typically measured are: retina or iris scans, fingerprints, voiceprints, and scans or records of hand or face geometry. Behavioral characteristics can include handwriting samples and signatures, voice recognition, and keyboard stroke and typing habits. Data collected and recorded by measuring an individual’s biological characteristics are known as “biometric identifiers.” Data derived and conclusions drawn from these biometric identifiers are known as “biometric information.”
      PubDate: Tue, 12 Sep 2023 14:23:16 PDT
       
  • One Test to Rule Them All: Retiring the Dual Standard for Fictional
           Character Copyrightability in the Ninth Circuit

    • Authors: Kiersten Daly
      Abstract: (Excerpt)From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value in asserting ownership over fictional characters. Since characters, like stories, are products of ideas, they are considered intangible property and are thus governed by intellectual property law, specifically copyright. Given the potential for financial gain, there has been much dispute over the copyrightability of fictional characters.While it is relatively straightforward to assert ownership over a film, television show, or novel under copyright law, it is more difficult to assert ownership over a character. Various circuit courts have taken different approaches to defining the scope of copyright protection for fictional characters. For example, the Ninth and Second Circuits, two of the most influential circuits for copyright law, employ slightly different approaches.
      PubDate: Tue, 12 Sep 2023 14:23:14 PDT
       
  • Title Seven Ate Nine' Extending Bostock's Meaning of "Sex" from Title
           VII to Title IX

    • Authors: Julia L. Shea
      Abstract: (Excerpt)When JayCee Cooper walked out onto the platform at a women’s powerlifting competition for the first time, “everything else fell away: her years-long internal struggle over her gender identity, her decision to leave men’s sports when she began transitioning, her doubts that she would ever feel safe if she returned to competitions.” Powerlifting was JayCee’s way of feeling empowered in her own life, but after signing up for more competitions, she was told she could no longer compete because of a discriminatory policy that barred transgender women. Transgender athletes play sports for the same reasons as anyone else, including improvements to physical and mental health. Yet, they face additional obstacles of hostility and exclusion that their cisgender counterparts have never dealt with. While discrimination happens in all areas of a transgender person’s life, there has been recent legal progress barring such discrimination in the workplace. In June 2020, the Supreme Court of the United States decided Bostock v. Clayton County, which broadened Title VII of the Civil Rights Act of 1964’s prohibition of employment discrimination on the basis of “sex” to include sexual orientation and gender identity. Thus, the Court broadened Title VII’s interpretation of the phrase “on the basis of . . . sex” to protect transgender individuals. However, the Court expressly stated that its decision was limited to employment discrimination and declined to address whether this definition of “sex” would apply to other areas, such as student-athletics.This Note argues that Bostock’s interpretation of “sex” should be extended to Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in any education program receiving federal funding. Additionally, this Note sets forth the constitutionality of various exclusionary policies, under different levels of scrutiny, by balancing the inclusion of transgender student-athletes with the underlying purpose of Title IX.
      PubDate: Tue, 12 Sep 2023 14:23:11 PDT
       
  • Unaccompanied Children and the Need for Legal Representation in
           Immigration Proceedings

    • Authors: Sejal Singh
      Abstract: (Excerpt)An unaccompanied child is defined as someone who enters the United States under the age of eighteen, without lawful status, and without an accompanying parent or legal guardian. Despite the term’s implication, many children do not enter the country alone but are either separated from their family members at the border or left by smugglers or other migrants near the border. The number of unaccompanied minors plunged in early 2020 due to border closures and restrictions amid the COVID-19 pandemic; however, a recent surge has led to a strain on government resources and a backlog of cases in immigration courts.Each year, thousands of children travel to the southern border from the Northern Triangle region of Central America. In fiscal year 2021, 47% of children were from Guatemala, 32% were from Honduras, and 13% were from El Salvador. Many children are escaping deadly gang violence, poverty, devastating hurricanes, and the pandemic. Most others are coming from Mexico, where violence continues to escalate amid the government’s war against drug cartels. Despite the dangerous journey, children are fleeing to the U.S. border to either be reunited with family members already here or escape dangerous conditions in their home countries. Unfortunately, once children arrive at the U.S. border, they continue to face difficult challenges including navigating a complex immigration system to stay in the United States, often by themselves.
      PubDate: Tue, 12 Sep 2023 14:23:09 PDT
       
  • Parole in Place as a Solution for the Immigration Status of Immediate
           Relatives of U.S. Citizens

    • Authors: Maximiliano Gluzman
      Abstract: (Excerpt)Spurred by the need to support his aging parents and younger siblings, X decided to immigrate to the United States in 1990. Unable to secure a visa to enter the United States, he entered the United States between ports of entry and quickly secured a low-paying job. While he could not spare a substantial part of his income to send to his family, the small amounts he could wire made an appreciable difference in their lives. X stayed in the United States and with time, he met and married Y, a U.S. citizen, with whom he had three children. With the exception of his irregular entry, X has had an exemplary life, eventually creating his own business, paying taxes, and putting his children through college. X’s children are now adults with their own families. X has never been the subject of a criminal investigation or charged with the violation of any rule. X remains, however, undocumented and at risk of deportation. In fact, unless major legislative or policy changes are enacted, X’s initial irregular entry will prevent him from changing his immigration status for the rest of his life. X’s wife and one of his adult children have both petitioned for a visa for X and both petitions have been approved years ago. However, X’s only way to take advantage of the visa approvals is to leave the country and remain in his home country for ten years. The Immigration and Nationality Act, (“INA”), allows U.S. citizens to request an immigrant visa for their spouses and–after reaching twenty-one years of age–for their parents. Once the request is approved, beneficiaries outside the United States can request a U.S. consulate to issue an immigrant visa for them and use their visas to enter as legal permanent residents. Certain beneficiaries already present in the United States can, however, avoid leaving the United States to obtain an immigrant visa by adjusting status to that of a legal permanent resident. However, under INA § 245(a), persons who were not inspected and admitted or paroled into the United States cannot adjust their status without leaving the United States and obtaining a visa at a U.S. consulate; under INA § 212(a)(9)(B)(i)(II), persons who have been in the United States unlawfully for more than one year are subject to a ten-year admissibility bar upon departure.
      PubDate: Tue, 12 Sep 2023 14:23:06 PDT
       
  • Education and Democracy from Brown to Plyler

    • Authors: Nicholas Espíritu
      Abstract: (Excerpt)Judicial review has often been cast in terms of democratic legitimacy. Democratic legitimacy is often linked to whether it institutes the will of the people through majoritarian rule and whether it creates processes for reevaluation of these prior decisions by newly constituted majorities. Judicial review of majoritarian decisions has often been criticized as a overriding or circumventing of these democratic processes. Beginning with Brown v. Board of Education, the Warren Court adopted a resolution of the “counter-majoritarian difficulty” of judicial review by tacitly accepting Justice Stone’s formulation from footnote four of United States v. Carolene Products and engaging in a more searching judicial review of majoritarian decisions in instances where the pluralist political give-and-take had broken down. While the subsequent Burger, Rehnquist, and Roberts Courts have undermined much of the Warren Court’s jurisprudence, a few of the most transformative decisions had seemed safe. This may have changed in the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning the landmark Roe v. Wade, and causing some politicians to begin openly questioning whether the Supreme Court should consider overruling other long-established precedents. One of these, Plyler v. Doe, like Brown, ensured educational access for a marginalized group and is similarly central to the contestations over judicial review and democratic legitimacy.
      PubDate: Tue, 12 Sep 2023 14:23:03 PDT
       
  • Border Enforcement as State-Created Danger

    • Authors: Jenny-Brooke Condon et al.
      Abstract: (Excerpt)A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm.Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.The harm of U.S. border policy is never far from the surface. For example, during the Trump Administration, policies such as the obversely-named Migrant Protection Protocols (“MPP”) and many others purported to function as measured—and even humanitarian—responses to a “crisis” of refugees at the southern border. Similarly, both the Trump and Biden Administrations invoked Title 42 health emergency powers during the pandemic to close off asylum processing for migrants. Both administrations framed this policy as a critical public health measure. In reality, however, these policies did little to achieve their purported policy aims. They instead sought to prevent migration and exposed migrants, including asylum seekers, to severe, and even deadly, harm.
      PubDate: Tue, 12 Sep 2023 14:23:01 PDT
       
  • Opening Remarks

    • Authors: Shoba Sivaprasad Wadhia
      Abstract: (Excerpt)Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe. This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning of the Equal Protection Clause of the Fourteenth Amendment; and (2) if yes, whether the statute violates the Equal Protection Clause. The plaintiffs in this case were school-age children of Mexican origin residing in Smith County, Texas, who could not establish that they were legally admitted into the United States.In a 5-4 opinion, the Court held: “[a] Texas statute which withholds from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment."While the court did not go as far as to call education a “right” it did underscore that “education has a fundamental role in maintaining the fabric of our society.”
      PubDate: Tue, 12 Sep 2023 14:22:58 PDT
       
  • Introduction

    • Authors: Rosemary Salomone
      Abstract: (Excerpt)This issue of the St. John’s Law Review includes several Articles that were initially presented at the Law Review’s Fall 2022 virtual symposium. The symposium commemorated the 40th anniversary of the Supreme Court’s landmark decision in Plyler v. Doe as a starting point for discussing current immigration law in the United States. It was dedicated in memory of Professor Michael A. Olivas, who held the William B. Bates Distinguished Chair in Law (Emeritus) and was the Director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. Professor Olivas, a passionate advocate of immigration reform and the rights of immigrants, was the author of No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Schoolchildren, the definitive book on the decision.
      PubDate: Tue, 12 Sep 2023 14:22:56 PDT
       
  • In Memoriam

    • Abstract: (Excerpt)The editors of the St. John’s Law Review respectfully dedicate this issue to Professor Olivas.
      PubDate: Tue, 12 Sep 2023 14:22:53 PDT
       
 
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