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Articles
Behavioral Genetics and the Best Interests of the Child Decision Rule
David J. Herring
go to abstractWho’s Talking? Disentangling Government and Private Speech
Leslie Gielow Jacobs
go to abstractOne for A, Two for B, and Four Hundred for C: The Widening Gap in Pay Between Executives and Rank and File Employees
Susan J. Stabile
go to abstract
NotesRegret Theory—Explanation, Evaluation and Implications for the Law
Grant B. Gelberg
go to abstractTheorizing Behavioral Law and Economics: A Defense of Evolutionary Analysis and the Law
Neel P. Parekh
go to abstract
Volume 36, Issue 2
Winter 2003
Articles
Expressivism, Empathy and Equality
Rachel D. Godsil
go to abstractEmotional Segregation: Huckleberry Finn in the Modern Classroom
Sharon E. Rush
go to abstractDeregulating Voluntary Dismissals
Michael E. Solimine
Amy E. Lippert
go to abstractFederal Preemption of Tort Claims Under FIFRA: The Erosion of a Defense
Valerie Watnick
go to abstract
NoteOvercoming a Lawyer’s Dogma: Examining Due Process for the “Disruptive Student”
Jessica Falk
go to abstract
Volume 36, Issue 3
Spring 2003
Symposium: Election Reform
ArticlesThe Absentee Ballot and the Secret Ballot: Challenges for Election Reform
John C. Fortier
Norman J. Ornstein
go to abstractVoter Education: The Key to Election Reform
Success Lessons from Florida
Susan A. MacManus
go to abstractBarriers to Participation
Trevor Potter
Marianne H. Viray
go to abstract
Articles
Crazy (Mental Illness Under the ADA)
Jane Byeff Korn
go to abstract
NoteWaiving Goodbye: Incarcerating Waived Juveniles in Adult Correctional Facilities Will Not Reduce Crime
Ellie D. Shefi
go to abstract
Volume 36, Issue 4
Summer 2003
A Colloquium on Immigration Law
Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions:
Should This Be Grounds To Withdraw a Guilty Plea?
John J. Francis
go to abstractGhost Workers In An Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labor Laws
Ruben J. Garcia
go to abstractAsylum, Social Group Membership and the Non-State Actor: The Challenge of Domestic Violence
Michael G. Heyman
go to abstractOn the Need for Reform of the H-1B Non-Immigrant Work Visa in Computer-Related Occupations
Norman Matloff
go to abstractThe Effect of Expungement on Removability of Non-Citizens
James A. R. Nafziger
Michael Yimesgen
go to abstractThe Qualities of Mercy: Maximizing the Impact of U.S. Refugee Resettlement
Daniel J. Steinbock
go to abstract
ABSTRACTS
Volume 36, Issue 1
Fall 2002
Behavioral Genetics and the Best Interests of the Child Decision Rule
David J. HerringThis Article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the “best interests of the child” rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose “best interests”are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.
Recent child development studies have shown that so-called “shared environment,” or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and “non-shared environment"” have a far greater influence on child development outcomes. While other reasons for the “best interests”rule may ultimately justify it, maximizing positive child development is not a justification supported by science.
Who’s Talking? Disentangling Government and Private Speech
Leslie Gielow JacobsSeveral different constitutional rules apply to government actions that influence the content of speech. The government has far more discretion to determine speech content when the government itself is the speaker than when it regulates private speakers. Specifically, in the former circumstance, the government can discriminate according to viewpoint, whereas in the latter circumstance it cannot. While the application of the rules may be obvious when either the government or private entities speak alone, increasingly, through various different types of interactions, government and private groups or individuals are speaking together. This circumstance complicates the crucial constitutional determination, which is: who’s talking?
This Article sets out the analysis necessary to make the speaker determination when government and private entities speak together. The different rules that limit government influence on the content of government and private speech exist because of the different constitutional values that attach to them. These values suggest characteristics that render government speech legitimate. Only when these characteristics exist in a government/private speech interaction should the more lenient constitutional rules-rules that allow viewpoint discriminatory government influence over speech content-apply. Otherwise, the more strict rules should limit government influence over speech content. This Article examines a number of different types of government/private speech interactions, identifying how variations in their structures determine the government's constitutional discretion to influence speech content.
One for A, Two for B, and Four Hundred for C: The Widening Gap in Pay Between Executives and Rank and File Employees
Susan J. StabileThis Article, focuses on executive pay in relation to that of rank and file workers. It examines the standard justifications for the vast and increasing pay gap be-tween executives (particularly CEOs) and rank and file workers and finds that such arguments do little more than attempt to justify in economic terms a situation that exists for a very different reason. Instead, the author argues, the real reason such a huge and widening gap in pay between executive and rank and file work-ers exists is market failure in the mechanisms of setting executive pay, aggravated by the shareholder primacy norm, which has resulted in an explosion in the use of incentive pay to compensate executives. The Article discusses two reasons why such a pay gap should be viewed negatively. The first is an economic argument that rests on declines in productivity and other adverse motivational consequences of employees' perceptions of unfairness. More importantly, the author argues that vast pay disparities are unacceptable as a matter of social policy and our notions of distributive justice. In order to address these concerns, the Article puts forth some suggestions for obtaining a more rea-sonable relationship between the compensation paid to executives and the pay received by rank and file employees. Finding it impractical to identify and attempt to achieve a particular pay ratio, the author argues for an approach that attempts to introduce more fairness (and perception of fairness) into the compensation set-ting process.
Regret Theory—Explanation, Evaluation and Implications for the Law
Grant B. GelbergThis Note discusses regret theory, which offers an alternative explanation of rational behavior in risky or uncertain situations. Unlike traditional law and economics, which is based on expected utility theory, regret theory posits that individuals either rejoice or experience regret after making a decision, and that the anticipation of these feelings influences choices ex ante. In recent years, studies have shown the robustness of regret theory, particularly when individuals compare action to inaction, in disparate feedback environments, and when decisional agency is altered. These, and other factors, influence regret theory's impact on litigant behavior, as well as on the law of contracts, insurance, and torts.
Theorizing Behavioral Law and Economics: A Defense of Evolutionary Analysis and the Law
Neel P. ParekhBehavioral law and economics (BLE) provides a steady stream of empirical evi-dence that counters the predictions of law and economics. Despite this research and data, however, many theorists argue that BLE ultimately fails because it pos-its no underlying theory. This Note argues that perspectives from evolutionary biology, evolutionary psychology, and the brain sciences can provide the missing motivational theory for BLE's empirical findings. The Note also examines the implications a more consistent and reasoned consideration of evolutionary analy-sis and the law (EA) has for our legal regime. In theorizing BLE and defending EA, this Note aims to show how evolutionary analysis can supplant law and economics in those instances where the latter's predictions prove false and its in-centive structure fails to motivate behavior.
Volume 36, Issue 2
Winter 2003
Expressivism, Empathy and Equality
Rachel D. GodsilIn this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, the operative step is determining whether a government action sends a proscribed message. Most expressivist scholars have argued that the meaning of government action should be determined from the perspective of a “universal”objective observer, the standard adopted by Justice O’Connor in the Establishment Clause Cases. Professor Godsil argues that a universalist objective observer standard will underserve the goals of expressivism and the Equal Protection Clause by marginalizing the views of those affected by the government action. This article proposes instead that the meaning be determined from the perspective of a reasonable member of the allegedly affected community. This refined expressive harm test will require the judge to empathize with the affected community to determine how a reasonable member of that community would view the challenged action. A reasonable community member standard will also lead to a greater degree of objectivity in judicial decisions because the individual judge's views will not necessarily prevail.
Emotional Segregation: Huckleberry Finn in the Modern Classroom
Sharon E. RushIn this article, I explore emotional segregation and how it functions in the context of Huckleberry Finn for both personal and academic reasons. Recently, I read Huckleberry Finn because it had been assigned to my daughter’s middle school class. I was concerned for her welfare because she is Black and worried how the book would affect her. To understand her reactions, I had to understand the controversy surrounding the book, particularly as a White mother. I have reflected quite deeply on the question whether the book is racist. I define “racism”as a belief in the myth of White superiority and Black inferiority, also known as the race precept. I conclude that Huckleberry Finn is racist. Undoubtedly, my conclusion reflects my experience as a White mother of a Black child. Without those experiences, it is possible my whiteness would not have allowed me to understand why and how teaching the book creates emotional segregation.
Deregulating Voluntary Dismissals
Michael E. Solimine
Amy E. LippertFederal Rule of Civil Procedure 41(a) and its state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. Within certain windows of opportunity, plaintiffs can take this unilateral action without the permission of the defendant or of the court, and without any conditions attached. When those windows are closed, plaintiffs can still seek dismissal with the approval of the defendant or of the court. This regime is problematic: giving plaintiffs this unilateral power is an anachronism in an age of managerial judging, and can be considerably inconvenient for defendants. Likewise, the case law has developed an unwieldy set of factors to guide trial courts in attaching conditions to the plaintiff seeking dismissal of a case.
This article advances several ways to rationalize voluntary dismissals. While Federal Rule 41(a) and its state law counterparts need some refinement, this article endorses their allowing a small window of opportunity at the beginning of a suit for plaintiff to dismiss without prejudice, with no conditions attached. When that window closes, plaintiff can still obtain dismissal of her suit, either by obtaining the defendant's or the court’s permission. With regard to the latter, the presumptive sole condition should be an award of reasonable attorneys' fees from plaintiff to defendant. Among the advantages of this condition is that it is much easier to administer than the current standards, fits comfortably within the language of Rule 41(a), avoids some of the pitfalls of loser pay proposals, and in part codifies the existing practice of many courts.
Federal Preemption of Tort Claims Under FIFRA: The Erosion of a Defense
Valerie WatnickWith the growth of federal regulation in the last century, federal preemption of state law has been an evolving issue in the area of toxic torts litigation. The preemption doctrine occupies a particularly prominent place in the area of pesticide-related litigation as the judiciary has struggled to decide what, if any, tort claims are preempted by the Federal Insecticide Fungicide and Rodenticide Act of 1972 (“FIFRA”), the federal statute governing the sale and labeling of pesticides in the United States. In Etcheverry v. Tri-Ag Serv. Inc., 22 Cal. 4th 316, 93 Cal. Rptr.2d 36 (2000), a case heard by the Supreme Court of California, the Environmental Protection Agency (“EPA”) took the position that federal preemption of pesticide-related tort claims is largely improper under FIFRA. The EPA’s advocacy represented a major departure from the U.S. government’s long silence with regard to federal preemption of tort claims and struck a huge blow to the pesticide industries’ future ability to use preemption effectively as a defense. Although the Supreme Court of California did not agree with the EPA’s position in Etcheverry, a significant number of other recent courts have adopted the EPA’s position, holding that FIFRA does not preempt most or any state tort claims. These court decisions indicate that judicial support for a broad view of federal preemption under FIFRA is eroding.
This article analyzes the history and considers the future of federal preemption of state tort claims pursuant to FIFRA. The article urges finally that the courts are not clear about the extent to which Congress intended to preempt common law tort claims pursuant to FIFRA; that FIFRA should be interpreted narrowly to provide for little federal preemption; and that, at the very least, Congress should clarify this issue.
Overcoming a Lawyer’s Dogma: Examining Due Process for the “Disruptive Student”
Jessica FalkThis Note explores how traditional due process functions in the context of school expulsion hearings. Traditional due process is inadequate in the case of “chronically disruptive” students because these students have lost their property right in education long before the law requires a due process hearing. Instead, new avenues of due process that are better adapted to the educational setting must be explored. Lawyers should expect schools to identify students’ with behavioral problems before expulsion becomes imminent and assist students in overcoming these problems. This “educational due process” not only helps to protect troubled student’s education, but it is also an effective way to address the problem of violence in schools.
Volume 36, Issue 3
Spring 2003
The Absentee Ballot and the Secret Ballot: Challenges for Election Reform
John C. Fortier
Norman J. OrnsteinReforms in the recently enacted federal election reform legislation primarily address improving voting at a polling place, but there is a growing share of the electorate who vote away from the polling place through increased use of absentee ballots and vote-by-mail systems. Voters who vote away from the polling place do not have the same protections as those at the polling place. In particular, these voters do not have a secret ballot, as any ballot cast without a drawn curtain behind oneself is potentially subject to coercion, vote buying and fraud.
This Article looks at the tension between the Australian Ballot and absentee voting. Both the Australian Ballot and the Absentee Ballot were electoral reforms of previous generations. The Australian Ballot was instituted by almost all of the states in the 1880s and 90s to combat abuses at the ballot box such as vote buying and coercion by party machines. There were two major periods of absentee ballot reform. In both periods of absentee ballot reform, there was recognition of the dangers of casting a ballot away from a home polling place. Since these early periods of adoption of absentee voting laws, there has been a significant rise in voting away from the polling place. In addition, many of the safeguards implemented by early legislation have been repealed. There are a number of advocates for easier absentee balloting, vote by mail, or even voting over the Internet. Although they emphasize the convenience of such measures, these advocates do not seem to appreciate the privacy concerns that the originators of the absentee ballot did. To the extent that election reform legislation is to be successful in improving the electoral system, it must take note of the trend toward voting away from the polling place and consider the importance of the secret ballot as well as convenience.
Voter Education: The Key to Election Reform
Success Lessons from Florida
Susan A. MacManusOver a dozen national task forces and commissions have analyzed the 2000 presidential election and concluded that electoral system reforms are imperative not just in Florida, but nationwide. Among the common recommendations are elimination of punch card ballots, enhancement of registration procedures and outreach, provision of more accurate voter lists, clear delineation of appeals processes, establishment of voter rights and responsibilities, clarification of recount rules and procedures, securing of accessible polling places, better facilitation of voting and proper counting of absentee ballots, and ensuring provisional ballots available at each precinct. For these reforms to be most effective, the reports say, better voter education is needed, and elections officials and poll workers must receive better training.
Florida has passed laws mandating better voter education, along with many other electoral reforms, in both the 2001 and 2002 legislative sessions. The sweeping Florida Election Reform Act of 2001 requires all 67 county supervisors of elections to file voter education plans with the Division of Elections in the Florida Department of State in order to qualify for state funds. (The Act appropriated nearly $6 million for voter education in fiscal year 2001-2002 in addition to $24 million for purchase of new voting equipment, fiscal years 2001–2003.) Laws passed in the 2002 session broaden the scope of voter education responsibilities, more definitively spell out voter rights, and ensure that Florida's electoral system conforms with the Americans with Disabilities Act of 1990.
This Article details the content and thrust of Florida’s voter education efforts and examines the creative educational efforts underway at the local level that other states’ communities would do well to follow, lest they become the objects of major litigation, the sites of political furor, and the objects of unwanted national attention.
Barriers to Participation
Trevor Potter
Marianne H. VirayDespite the nation’s founding commitment to participatory democracy, many barriers to candidate and public participation in the electoral process are damaging the public’s confidence that our elections are fair and open to full participation by candidates and voters.
The nominating processes created by the two major parties mainly serve the goals of party “insiders” and the more politically extreme factions, at the expense of competition and public confidence in the two-party system. At the same time, barriers to minor party and independent candidates-closed primaries, excessive early-voter registration requirements and complicated state primary and general ballot access requirements-operate to foreclose the possibility of a meaningful multi-party system.
This Article will evaluate these and other legal and political barriers, and discuss the cost that such practices impose upon the nation’s civic life.
Crazy (Mental Illness Under the ADA)
Jane Byeff KornThis Article examines how people with mental disabilities and mental illnesses have been treated under the Americans with Disabilities Act. Part I addresses the history of mental illness. It argues that while beliefs about the causes and content of mental illness have vacillated over time, the mentally ill have received consistently poor treatment throughout human history. Part II addresses present problems with the definition of mental illness, including how mental illness and mental disability are defined under the Americans with Disabilities Act.
Part III discusses the problems faced by people with mental illness today. The author argues the current state of the law affords little protection to persons with mental illness, despite the existence of the Americans with Disabilities Act. Part III gives particular attention to the problems employers face, and think they face, when trying to accommodate the mentally disabled in the workplace. Part IV examines the distinction between physical and mental disability. The author argues that the distinction between these two categories of illness is untenable: many “physical” disabilities have a cognitive component, and many “mental” disabilities have direct physical effects. In the context of the ADA, the author argues that the distinction is merely a font of useless litigation, and that the additional cost of addition coverage for mental disabilities would be slight.
In Part V, the author proposes a solution: eliminating the ADA’s distinctions between mental and physical disabilities. The author argues that this would reduce the difficulties faced by the mentally disabled, and those whose disabilities are not easily categorized as either purely mental or purely physical, while not imposing any significant additional burden on employers.
Waiving Goodbye: Incarcerating Waived Juveniles in Adult Correctional Facilities Will Not Reduce Crime
Ellie D. ShefiIncarcerating waived juveniles in adult correctional facilities does not reduce crime or result in increased public safety; incarcerating juveniles with adults is deleterious to both the individual offender and society. This Note argues for a renewed focus on rehabilitative rather than retributive justice, and in so doing, proposes the implementation of a comprehensive continuum of graduated sanctions that includes networks of small, secure, highly structured maximum-security juvenile facilities, wilderness camps, residential and non-residential community-based programs, restitution, and fines. This Note further advocates for the incorporation of extensive education, vocational training and placement, counseling, treatment, supervision, mentoring, transitional, aftercare, and support services. By providing the appropriate services in the appropriate setting, youthful offenders can be rehabilitated while simultaneously being held accountable for their actions; recidivism will be reduced and both society and the youth will be better served.
Volume 36, Issue 4
Summer 2003
Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions:
Should This Be Grounds To Withdraw a Guilty Plea?
John J. FrancisIn this Article, Professor Francis argues that non-citizen criminal defendants should be afforded greater latitude in withdrawing guilty pleas, when those pleas are made without awareness of potential immigration consequences. Moreover, the Article highlights the roles both judges and attorneys should play in ensuring that non-citizens do not enter into such uninformed pleas.
Noting that courts have characterized deportation as a collateral consequence of a criminal conviction, the article argues that deportation, following the passage of the Immigration and Naturalization Act of 1996, is unique in its severity and certainty. Many of the same due process considerations which underpin the requirement of advisement of direct consequences apply equally as strongly in the case of the collateral consequence of deportation; therefore, the Article argues, these policy considerations require that courts advise criminal defendants that if they are not citizens of the United States, entering a guilty plea may adversely impact their ability to stay in this country.
The Article proposes that bar associations develop universal standards requiring attorneys to determine the immigration status of all clients and to properly advise non-citizen clients of deportation risks of convictions. Further, failure to comply with these minimum standards should constitute the basis of an ineffective assistance of counsel claim. Finally, the Article calls on Congress and state legislatures to amend criminal procedural rules to require that all criminal defendants be advised that if they are not United States citizens, entering a plea of guilty or no contest to crimes may adversely impact their immigration status.
Ghost Workers In An Interconnected World:
Going Beyond the Dichotomies of Domestic Immigration and Labor Laws
Ruben J. GarciaBeginning with the September 11, 2001 (“9/11”) terrorist attacks, the labor movement’s plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL-CIO’s hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back pay for undocumented workers would trench upon the employer sanctions regime expressed in the Immigration Reform and Control Act of 1986. In this Article, Professor Garcia analyzes the challenges facing the labor movement and immigrant workers from several perspectives. The Hoffman decision raises questions about the effectiveness of domestic labor law for all workers, as well as international human rights issues. Before the Hoffman decision, immigrant worker organizing took place in a legal environment that was at best indifferent, if not hostile, to the rights of immigrants and all workers. The Article addresses the effects the Hoffman decision and the post 9/11 climate have had on immigrant worker organizing and immigration reform. Then, Professor Garcia discusses reforms that could ameliorate the impact that Hoffman has had on immigrant workers’ rights, and the likelihood those reforms will be enacted. This Article concludes that an integrated vision of labor and immigration law reform is necessary in light of an increasingly globally interconnected society.
Asylum, Social Group Membership and the Non-State Actor: The Challenge of Domestic Violence
Michael G. HeymanThis Article argues that the current approaches to asylum claims based on “social group”membership under the U.N. convention Relation to the Status of Refugees are deeply flawed. The Refugee Convention confers asylum on persons persecuted for their membership in a particular social group. Courts have struggled with the boundaries of the social group definition, and there appears to be no coherent way to reconcile all of the court decisions on what groups qualify as social groups under the Refugee Convention.
This Article suggests that courts adopt a consistent definition of what constitutes a social group. The definition proposed in this Article focuses on social perception in the home country of the asylum applicant, and would modestly expand the number of individuals who could successfully claim they were persecuted because of membership in a social group. The Article argues this response is particularly appropriate in light of a major trend in immigration law: asylum applicants increasingly seek protection from persecution not directly from the government, but from non-state actors who are able to persecute their victims because of government indifference to the plight of members of a social group.
Part I of this Article introduces the general objectives and structure of asylum law, and its embodiment in the Geneva convention. Part II explains the current law concerning the social group category, and suggests that courts have failed to provide a consistent standard for social group membership, instead relying on ad hoc decisions about particular claims. Part II goes on to suggest that one major reason for this incoherence is that courts paid insufficient attention to claims of persecution by non-state actors. Part III addresses the problems the non-state actor poses for asylum law. Part IV addresses the particular issue of asylum claims arising out of domestic abuse. It reviews international cases on the subject and the Board of Immigration Appeals’ decision in R-A-. Part IV argues R-A-’s defines social groups too narrowly, and that courts should allow some claims of asylum based on domestic abuse.
On the Need for Reform of the H-1B Non-immigrant Work Visa in Computer-Related Occupations
Norman MatloffThe H-1B program authorizes non-immigrant visas under which skilled foreign workers may be employed in the U.S., typically in computer-related positions. Congress greatly expanded the program in 1998 and then again in 2000, in response to heavy pressure from industry, which claimed a desperate software labor shortage. After presenting an overview of the H-1B program in Parts II and III, the Article will show in Part IV that these shortage claims are not supported by the data. Part V will then show that the industry's motivation for hiring H-1Bs is primarily a desire for cheap, compliant labor. The Article then discusses the adverse impacts of the H-1B program on various segments of the American computer-related labor force in Part VI, and presents proposals for reforms in Part VII.
The Effect of Expungement on Removability of Non-Citizens
James A. R. Nafziger
Michael YimesgenFor most of the twentieth century, a non-citizen was generally not subject to removal on the basis of a criminal conviction which had been expunged by the state that rendered the conviction. During that time, the definition of a “conviction” for purposes of immigration law was borrowed from the law of the state which rendered the criminal conviction. In the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 Congress sought to provide a more uniform definition of the term “conviction” sufficient to justify an order of removal under the immigration law. The IIRIRA does not mention expungement, however.
This Article argues that the Board of Immigration Appeals (BIA) and courts have misconstrued the IIRIRA. In 1999 the BIA first dealt with the effect of a state expungement under the statute. This Article argues that the BIA's decision in Matter of Roldan improperly reversed more than a half-century of precedent by refusing to give effect to a state expungement of a non-citizen's conviction unless expressly provided by federal statute. Judicial decisions have since accepted this rule.
Part I of this Article reviews state expungement statutes. Part II summarizes cases prior to the IIRIRA. Part III explains the IIRIRA and Matter of Roldan. Part IV addresses recent cases concerning the effect of a state expungement on removability, arguing that these cases have either misconstrued the IIRIRA or improperly applied the Chevron doctrine. Part V compares the current state of the law with immigration laws abroad, arguing that the exceptional result reached by United States courts is further evidence that Matter of Roldan and its progeny are mistaken.
The Qualities of Mercy: Maximizing the Impact of U.S. Refugee Resettlement
Daniel J. SteinbockResettlement in the U.S. bestows a life changing benefit on thousands of overseas refugees. Because American refugee acceptance can never reach more than a tiny fraction of the world's millions of persecuted or oppressed, however, allocating this bounty requires the U.S. to choose the lucky few from the worthy many. Since the creation in 1980 of a permanent program of refugee resettlement, three different, and often conflicting, purposes have contended for its trove of immigration-like admissions slots. These are the removal of people from danger or hardship, the furtherance of a cluster of foreign policy objectives, and the facilitation of such traditional immigration aims as family reunion or cultural connection to the U.S.
This Article examines these selection grounds from practical, political, and philosophical perspectives, beginning with a consideration of the kinds of hardship that might warrant removal to the U.S. Given that refugee resettlement can reach only a tiny fraction of the oppressed, endangered, or suffering people in the world, this Article proposes that we concentrate on those whose admission would have the greatest positive impact on U.S. interests, the refugees themselves, or the populations from which they are drawn. This priority includes the most seriously threatened, but also covers those whose admission would provide some other, secondary gains beyond the primary benefit of removing a person from danger or hardship.
In light of the context and process dynamics of refugee resettlement, the Article recommends several ways of maximizing its impact. These include burden-sharing, active acceptance of human rights activists, more selection directly from countries of persecution, and greater geographic concentration. The Article also suggests that the only family reunion grounds for selection be that of spouses or parents and their minor children, that cultural connections to the U.S. generally should not count in refugee resettlement, and that certain foreign policy purposes be eschewed. All of these recommendations are made with the aim of making the most of a valuable and increasingly scarce life-saving resource.