Thursday, October 31, 2019
Once again, so many of our incredible clinical colleagues have produced a number of important and timely articles. The full list along with ssrn or other links are below.
ASYLUM AND IMMIGRATION
Jaclyn Kelley-Widmer and Hillary Rich: A Step Too Far: Matter of A-B-, "Particular Social Group," and Chevron, Cornell Legal Studies Research Paper No. 19-30. This paper describes the 2018 Attorney General decision in Matter of A-B-, a case that severely reduced protections for asylum seekers fleeing gender-based violence. Using statutory interpretation, we argue that A-B- is a misinterpretation of the refugee definition term "particular social group" and does not merit Chevron deference.
Jason Cade: Restoring the Statutory Safety-Valve for Immigrant Crime Victims: Premium Processing for Interim U Visa Benefits, 113 Nw. U. L. Rev. Online 120 (2019). This essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that the agency has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the U visa remain under-realized and communities are left less safe. In an era of sustained focus on enforcement and increased instability within immigrant communities, the situation becomes ever more urgent. This Essay introduces and defends a simple administrative innovation that would dramatically improve the process: a premium processing route for interim approvals and employment authorization. Although our proposal cannot resolve all the underlying problems, it is pragmatic, easily implemented, and superior to the status quo.
Lindsay M. Harris: Withholding Protection, 50.3 Columbia Hum. Rts. L. Rev. 1 (2019). Exploring split-second decisions made by CBP officers at our border to deny access to asylum protection and render individuals eligible only for withholding of removal. Considering the use of body-worn cameras to provide a measure of process and oversight.
Jean C. Han: The Good Notario: Exploring Limited Licensure for Non-Attorney Immigration Practitioners, 64 Vill. L. Rev. 165 (2019). This article proposes a way to safely and significantly close the justice gap for immigrants in the United States on a more effective scale: to harness an existing resource and call for the accreditation of non-attorneys through more robust regulation by the Department of Justice.
CLINICAL AND LEGAL EDUCATION
Carolyn Grose & Margaret E. Johnson: Braiding the Strands of Narrative and Critical Reflection with Critical Theory and Lawyering Practice, 26 Clinical L. Rev. 203 (2019). This Essay builds off of our previous work on narrative and critical reflection, including LAWYERS, CLIENTS & NARRATIVE: A FRAMEWORK FOR LAW STUDENTS AND PRACTITIONERS. Lawyers with clients braid together narrative, critical reflection and normative theory in a double-helix spiral to create normative narratives that further their clients' goals and strive toward justice. Critical reflection and narrative theory work together to guide us to ask questions and broaden our perspectives in gathering information and constructing cases and projects. By intentionally adding in the strand of normative theory, comprising client-centeredness, justice and professionalism, and critical theory, we create a spiral of lawyering focused on the client, aware of power dynamics and attentive to structural forces, designed to achieve client's goals, and consistent with making the world a more just place. This Essay walks through each component of the double-helix spiral and explains how they work together to create normative narratives.
Jason Cade: Teaching Tomorrow’s Lawyers Through a (Semi-)Generalist, (Mostly-) Individual Client Poverty Law Clinic: Reflections on Five Years of the Community Health Law Partnership, 53 Ga. L. Rev. Online 143 (2019). Design options when starting a live-client clinic from scratch can be somewhat overwhelming. Should the clinic focus on systemic impact or individual representation? Appellate work or hearings? Should the clinic specialize or cover multiple legal issues? Another set of issues concerns how the clinic should find and accept its clients, and whether students should have a role in the intake process. The list of choices goes on. In this Essay, written for the Georgia Law Review’s Online Issue celebrating 50 years of clinics at the University of Georgia School of Law, I describe how I have navigated these and other choices in designing the Community Health Law Partnership Clinic (Community HeLP), which just completed its fifth year of operation. My experience suggests that there may be significant pedagogical benefits to forging a middle-path through some of the central divides in clinic design. Specifically, there are deep service and learning opportunities for students who engage in a combination of individual representation and larger advocacy projects concerning multiple — but not unlimited — areas of poverty law. This Essay unfolds as follows. Part I describes the origin and development of Community HeLP in its first five years. Part II outlines the trade-offs between specialization and generalization, and evaluates the middle path thus far taken by Community HeLP. Part III then explores the value of a clinic that primarily engages in individual representation, but in which students also take on larger advocacy projects that flow from the clinic’s case work.
Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz E. Herrera, JoNel Newman: In Times of Chaos: Creating Blueprints for Law School Responses to Natural Disasters, 80 La. L. Rev. __ (Forthcoming 2019). Drawing on their experiences in responding to natural disasters, the authors examine the legal needs and community contexts of natural disasters, describe the distinct responses to natural disasters in their clinics and schools, offer methods and models for disaster response, suggest best practices, and consider systemic and justice needs in these moments of crisis and rebuilding.
Clinical Legal Education Association Committee for Faculty Equity and Inclusion: The Diversity Imperative Revisited: Racial and Gender Inclusion in Clinical Law Faculty, 26 Clinical L. Rev. 127 (2019). This article describes trends in the racial and gender composition of clinical faculty since 1980. The percentage of people of color has grown from 10% to 21%, but the percentage of Black, Latinx, and Indigenous faculty has been stagnant. Women were underrepresented on clinical faculties in the 1980s, but now outnumber men in clinical faculty positions. The article recommends better data collection and best practices for more inclusive clinical faculty hiring and retention.
Robert Dinerstein: The Clinical Law Review at 25: What Hath We Wrought?, 26 Clinical L. Rev. 147 (Fall 2019). This article takes a look at the Clinical Law Review's 25-year history and examines the extent to which it has implemented the visions of clinical scholarship that some of those involved in its founding had for it.
Robert Kuehn: A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. (forthcoming 2019). This article reports the results of a large-scale study of the relationship between experiential and bar-subject coursework and bar exam outcomes. It finds that the number of experiential courses or credits taken by a student did not correlate with passage, positively or negatively. Enrollment in bar courses correlated positively, but modestly and only for students who are at heightened risk of failure. The results indicate that efforts to improve bar passage by capping experiential credits are not supported by empirical evidence.
COMMUNITY ECONOMIC DEVELOPMENT AND TRANSACTIONAL LAW
Jennifer S. Fan: Woke Capital: The Role of Corporations in Social Movements, 8 Harv. Bus. L. Rev. (forthcoming). The contribution of this Article is three-fold: it discusses how court cases and changing norms about the role of the corporation in society led to the rise of the modern business corporation, which in turn laid the groundwork for corporations’ involvement in social movements; provides an original descriptive account of the role of corporations in social movements using three case studies and the ways in which corporations have helped or hindered such movements; and tackles the underlying normative question about the appropriateness of the involvement of corporations in social movements in light of the legal framework in which it resides. This Article concludes that despite the perils, corporate law holds the promise of being a force for social change.
Jennifer S. Fan: Employees as Regulators: The New Private Ordering in High Technology Companies, Utah L. Rev. (forthcoming). This Article builds upon my prior work on the role of corporations and social movements, and analyzes how employees in high technology companies have redefined the contours of private ordering and, in the process, have also reimagined what collective action looks like. Because these workers are in high demand and short supply, they are able to affect private ordering in a way that we have not seen before. As a result, they have the potential to be an important check on the high technology sector.
Ted De Barbieri: Lawmakers as Job Buyers, 88 Fordham L. Rev. 15 (2019). Discusses attempts by state and local governments to influence private business location decisions for large employers, detailing policy proposals for state and local govts to mitigate associated risks.
Ted De Barbieri: Urban Anticipatory Governance, 46 Fla. St. U. L. Rev. 75 (2019). Placing focus on involving the public before large urban redevelopment projects are approved can improve the quality of those projects and their ability to respond to future challenges.
Ted De Barbieri: Connecting Community Control of Infrastructure and Economic Development with Race and Privilege, 28 J. Aff. Hous. & Cmty. Dev. L. __ (forthcoming 2019): This brief essay will address the connection between community control of local development and race and privilege within the context of community economic development.
Ted De Barbieri: Thematic Overview: Race, Place, and Pedagogy in Achieving Access to Justice Through Community Economic Development. 28 J. Aff. Hous. & Cmty. Dev. L. 467 (2019). Through discussion groups at the AALS Annual Meetings in 2017, 2018, and 2019, the annual Transactional Clinics Conference, and elsewhere, scholars and practitioners have advanced the conversation in a meaningful way. What follows here is a brief thematic overview of the discussion that occurred in January 2018, and a synopsis of the abstracts that follow.
Rachel E. Deming: Protecting Natural Resources - Forever: The Obligations of State Officials to Uphold "Forever" Constitutional Provisions, 36 Pace Envtl. L. Rev. 202 (2019). This Article analyzes the attacks on Florida’s constitutional conservation lands program since the election of a governor and state legislature opposed to environmental regulation in 2010 – a precursor to current happenings at the federal level under the Trump administration. I examine this issue of deliberately violating constitutional requirements through the lens of state constitutional provisions that protect natural resources, focusing on Florida and New York. Both states have explicit protections for conservation and forest lands.
Jason Parkin: Dialogic Due Process, 167 U. of Pa. L. Rev. 1115 (2019)
J.D. King: Privatizing Criminal Procedure, 107 Geo. L. J. 561. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.
Dustin Marlan: Beyond Cannabis: Psychedelic Decriminalization and Social Justice, 23 Lewis & Clark L. Rev. 851 (2019). This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice, namely neurodiversity.
Jenny Roberts: Collateral Consequences of Criminal Conviction: Law, Policy and Practice (Third Edition), MARGARET COLGATE LOVE, JENNY ROBERTS & WAYNE A LOGAN, COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION: LAW POLICY & PRACTICE (2018-2019 ed. 2018). This book covers general types of collateral consequences, attorneys’ duties regarding consequences, constitutional challenges to consequences, access to and the use of criminal records, regulation of employment and occupational licensing, and restoration of rights after a conviction. Insights on practice guidance, historical background and future trends are discussed.
EDUCATION AND SCHOOLS
Kate Sablosky Elengold: The Investment Imperative, 57 Hous. L. Rev. 1 (2019). This Article names and identifies the “investment imperative” as the widely-held belief that higher education is necessary to increase one’s financial prosperity and social standing in America. Drawing on interdisciplinary scholarship, empirical studies, and original interviews with student loan borrowers across the country, this Article argues that the investment imperative drives and distorts students’ financial behaviors and decisions in ways that leave students vulnerable to exploitation and ignore the effects of systemic inequalities related to race, gender, and class.
Emily Suski: The Title IX Paradox, 108 Calif. L. Rev. __ (forthcoming 2020). This article argues that the courts’ assessments of Title IX’s actual notice standard create an impossible paradox for students suffering sexual harassment in the public schools. Drawing on empirical research in behavioral psychology and child and adolescent neuroscience, it contends that the courts require students to make particularized reports of their sexual harassment they naturally cannot make.
Claire Raj: Disability Law as an Agent of School Reform, 94 Wash. L. Rev. (forthcoming Dec. 2019). This article critiques recent class action litigation aimed at expanding disability rights coverage for students who have experienced “complex trauma.”
Deirdre M. Smith: Keeping It in the Family: Minor Guardianship as Private Child Protection, 82 Conn. Pub. Interest L. J. 51 (2019). Minor guardianship has been transformed from a probate tool used to protect orphans’ property interests to a strategy to keep children out of foster care when a parent is in crisis and to address their care within the family as a form of “private child protection.” The article examines the implications for children, parents, and relative caregivers of this use of guardianship and proposes changes to better serve the needs and interests of these families.
Lisa Martin: Litigation as Parenting, 95 N.Y.U. L. Rev. (forthcoming 2020). This Article proposes that constitutional doctrine establishing parents’ protected decision-making authority should make parents the default representatives for their children in federal civil litigation under Federal Rule of Civil Procedure 17(c).
Josh Gupta-Kagan: America’s Hidden Foster Care System, 72 Stan. L. Rev. __ (forthcoming 2020). Critically examines the common child protection agency practice of causing changes in children's physical custody by demanding that parents agree to "safety plans" calling for others to take their children, and recommends various due process and administrative oversight reforms.
Deborah N. Archer: The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, 118 Mich. L. Rev. 1 (2019). Crime-free housing ordinances are local laws that either encourage or require private landlords to evict or exclude tenants who have had varying levels of contact with the criminal legal system. Though formally race neutral, these laws facilitate racial segregation in a number of significant ways. The Article contends that crime-free housing ordinances enable racial segregation by importing the racial biases, racial logics, and racial disparities of the criminal legal system into private housing markets. While scholars have examined the important role local laws played in effectuating racial inequality, they have not paid attention to crime-free housing ordinances. In addition to foregrounding how crime-free housing ordinances reinforce and perpetuate racially segregated communities, this Article proposes an intervention: a “segregative effects” claim, an underutilized cause of action under the Fair Housing Act of 1968, to challenge this segregative impact. While this intervention would not end the pervasive nature of housing segregation across the United States, it could eliminate at least one of the causes of this persistent problem: a body of law whose formal race neutrality has obscured its racially segregative effects.
Deborah N. Archer: Exile from Main Street, Harv. Civ. Rts. – Civ. Liberties L. Rev. (2019). This Article examines how the entanglement of policing-based housing policies and the criminal legal system threatens to push already marginalized people further to the edges of society, while also circumscribing the mobility of people of color who have the means and desire to live in integrated spaces. The Article encourages a more holistic analysis of these policies and a de-coupling of the criminal legal system from housing policy to prevent unnecessary burdens on the “right” to housing.
Nadiyah J. Humber: In West Philadelphia Born and Raised or Moving to Bel-Air? Racial Steering as a Consequence of Using Race Data on Real Estate Websites, Hastings Race & Poverty L. J. (forthcoming 2019). Current fair housing laws are not entirely equipped to deal with housing discrimination on the internet, particularly the practice of racial steering. My article examines real estate websites, like ZillowGroup, and suggests that race data that has been posted on these platforms are problematic. Two recommendations for addressing the use of race data on these websites include using discriminatory effect theory as a litigation strategy and amending the FHA to cover online real estate marketplaces.
TAX AND NON-PROFITS
Jaclyn Fabean Cherry: Nonprofit Governance: Who Should be Watching? A Look at State, Federal and Dual Regulation, 13 Ohio St. Bus. L. J. 145 (2019). Recent scandals in the nonprofit sector have once again called into question the issue of nonprofit governance. Who is governing these organizations and are they doing so appropriately? Who is regulating and what law applies — federal, state, or both? This Article discusses nonprofit governance, board of director fiduciary duty, and federal, state, and common law as they pertain to nonprofit governance suggesting that dual jurisdiction with established roles and mandatory information sharing may work best.
WOMEN AND THE LAW
Jennifer S. Fan: Innovating Inclusion: The Impact of Women on Private Company Boards, 46 Fla. St. U. L. Rev. 345 (2019). This Article documents the exclusion of women from the boards of nearly all the major private high technology companies currently influencing American business, and it explains why this male-only hegemony matters. It then offers a new paradigm, the innovation imperative, for creating a business culture in which people of all genders can make valued contributions. It analyzes two potential arenas for change: the legal and business realms.
Tanya Asim Cooper: #SororityToo, Mich. St. L. Rev. (forthcoming 2020). Sexual violence is an epidemic affecting millions of students, and those who participate in collegiate Greek life are especially vulnerable. As social societies bent on secrecy, Greek life hides violence in its midst. Laws and campus policies when accessed offer little help to victims, and often secondarily traumatize them. Publicized scandals on campus and social media campaigns, however, have raised awareness and sparked public outrage against the widespread problem of sexual violence and high-risk Greek life. Systems change theory offers a useful framework to reform high-risk Greek life from many angles: education, reporting, litigation, and collective action of its system actors. Effective strategies exist to create safer Greek organizations for students but without reform, we will continue to jeopardize the education and health of millions of students.