Tuesday, March 29, 2011
Here is the latest from the Social Science Research Network (www.ssrn.com):
"Why Padilla Doesn’t Matter (Much)" UCLA Law Review, 2011 Virginia Public Law and Legal Theory Research Paper No. 2011-10 DARRYL K. BROWN, University of Virginia School of Law. ABSTRACT: The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants charged with crimes, and more broadly an advance in the Court’s recognition of the role both of plea bargaining in criminal adjudication and of the severe collateral consequences often triggered by convictions for citizen as well as alien defendants. There are good reasons to suspect, however that Padilla’s practical impact will be modest; for many non-citizen criminal defendants, including probably Jose Padilla himself, its impact will be non-existent. The Padilla holding seeks to ensure that defense lawyers are aware of severe collateral consequences that attach to convictions, in order both to inform their clients of those consequences to inform plea bargain negotiations among attorneys. The Court speculated that attorneys then may be able to craft alternative criminal or immigration-law outcomes through creative bargains. But the problem for many non-citizen defendants like Mr. Padilla is not simply - and not primarily - their lawyers’ unfamiliarity with immigration law; it is the content of the substantive criminal law, of sentencing law, of the sources of non-criminal law that define collateral consequences and, finally, of limited procedural possibilities for avoiding or mitigating those consequences. None of that law changes with Padilla. As a result, defense lawyers’ (and even prosecutors’) abilities to negotiate around criminal law or immigration law, and to achieve more favorable or just outcomes for defendants are not notably improved. Adding to those limitations, the pervasive inadequacies of indigent criminal defense, especially in state courts, are unaffected by Padilla, further diminishing the hope that attorneys’ awareness of collateral consequences will improve client representation and case outcomes.
"Kiyemba, Guantanamo, and Immigration Law: An Extraterritorial Constitution in a Plenary Power World" Chapman University Law Research Paper No. 11-04 ERNESTO ADOLFO HERNANDEZ LOPEZ, Chapman University School of Law. ABSTRACT: Immigration law is central to justifications for why five men remain detained indefinitely at Guantanamo, despite having writs of habeas approved in 2008. Since then, the Court of Appeals in Kiyemba v. Obama I, II, and III has used plenary powers reasoning to justify detentions under immigration law. The detainees are all non-combatants and Uighurs, Turkic Muslims from China. The Supreme Court may review these cases. Kiyemba I and III concern their judicial release into the U.S., while Kiyemba II regards barring their transfer because they may be tortured overseas. These cases raise significant constitutional habeas issues, but they also justify detentions with plenary powers. This reasoning defers immigration issues to the political branches and denies rights because of a detainee’s alien status or presence overseas. This Essay argues that immigration law, i.e. plenary powers, provides a “fall back” legal justification for Guantánamo detentions. This is especially important after the Supreme Court’s finding in Boumediene v. Bush that aliens on the base enjoy constitutional habeas rights. A critical non-legal context produces the Kiyemba detention quagmire. A transnational analysis of this context points to the normative influence of assumptions on diplomacy, culture, geopolitics, individual rights, and the War on Terror.
"The Article II Safeguards of Federal Jurisdiction" Columbia Law Review, Vol. 112, 2012 FSU College of Law, Public Law Research Paper No. 489 TARA LEIGH GROVE, Florida State University College of Law ABSTRACT: Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the President was otherwise deeply critical of the federal courts’ constitutional jurisprudence (such as during the Franklin Roosevelt and Reagan Administrations). Furthermore, even when jurisdiction-stripping measures do become law, the executive branch controls the enforcement of that law. The Department of Justice has repeatedly used this enforcement authority to urge the courts to interpret jurisdictional restrictions narrowly in order to preserve jurisdiction over constitutional claims. This executive branch practice has important implications for the Obama Justice Department, as it litigates cases brought by current and former detainees in the war on terror. One provision of the Military Commissions Act of 2006 appears to preclude any court from examining a detainee’s challenge to his “conditions of confinement” during his detention. The executive branch could substantially limit the impact of this law by conceding (as it has in prior administrations) that the federal courts retain jurisdiction over constitutional claims.
"Mixed Messages and Signals: The Mobilization and De-Mobilization of Latino Identities in Reaction to Explicit and Implicit Cues in Immigrant Political Rhetoric" PORSHA CROPPER, affiliation not provided to SSRN. ABSTRACT: There is considerable debate as to whether ethnic group identity influences Latino political behavior. While research illustrates that ethnic cues in campaigns prime ethnic identity, there are still a number of unanswered questions as to which cues mobilize or de-mobilize identities in participation. I argue that elite discourse about immigration and/or immigrants in political media influences the type of cleavages formed among diverse groups of Latinos. Differences in group attachments, socioeconomic status, acculturation, and generational status across Latino national origin groups may create divisions or coalitions in how Latinos come to understand their collective interests within immigration and/or immigrant related debates. Using a laboratory experiment, I manipulate exposure to cues and tests how these cues prime national origin, panethnic, or American group identity among Latinos. I hypothesize that political context matters in fostering or minimizing collective mobilization among Latinos of different nationalities across generations.