Tuesday, December 1, 2020

Giving Tuesday

Giving Tuesday

It's Giving Tuesday, time to assuage the guilt of yesterday's Cyber Monday sprees with some charitable contributions.

There are a LOT of wonderful immigration-related 501(3)(c) organizations that you might consider donating to today. Here are just a few that we've noted in years' past:

  • The Safe Passage Project is all about representing children in immigration proceedings.
  • Muslim Advocates have done excellent work fighting Trump's travel bans.
  • Educators for Fair Consideration works on "empowering undocumented young people to achieve educational and career goals."
  • The Florence Project provides free legal services to men, women, and unaccompanied children in immigration custody in Arizona
  • Immigrant Legal Resource Center promotes and defends immigrant rights.
  • Northwest Immigrant Rights Project provides direct services to immigrants.
  • IRIS, "a non-sectarian, independent nonprofit refugee resettlement agency that has welcomed more than 5,000 refugees to Connecticut since 1982."
  • HIAS, whose mission is to "Welcome the stranger. Protect the refugee." (The Pittsburgh attacker railed against this organization on Twitter.)
  • RAICES, "the largest immigration legal services provider in Texas."
  • Ayuda, providing immigration legal services in the DC area.
  • Young Center for Immigrant Children's Rights, championing "the best interests of children who arrive in the United States on their own, from all corners of the world."
  • Orange County Justice Fund, which aims "to ensure that no Orange County resident is forced to defend themself from deportation without an attorney, and to provide support so that those individuals eligible to be released from detention can do so without being financially devastated."
  • Al Otro Lado, "serving indigent deportees, migrants, and refugees in Tijuana and Los Ángeles."
  • Kidsave, facilitating international adoptions of older children.

Earlier today, guest blogger Allegra Upton noted a few more:

Have even more ideas? Post them in the comments. Or shoot me an e-mail and I'll update this list.


December 1, 2020 in Current Affairs | Permalink | Comments (0)

Case preview: When can U.S. companies be sued for alleged violations of international human rights?


Amy Howe for SCOTUSBlog previews oral arguments in an international human rights case.  Part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) allows foreign citizens to sue in U.S. courts for violations of international law. Later today, the justices will hear oral argument in Nestlé USA v. Doe I and Cargill, Inc. v. Doe I, which will determine whether an ATS lawsuit brought by former child slaves in Ivory Coast can continue. "Plaintiffs allege that the two U.S. companies facilitated human-rights abuses on the plantations where children worked. The companies warn that allowing lawsuits like this one to go forward could be a drain on the U.S. economy and cause problems for U.S. foreign policy, while the plaintiffs counter that these are exactly the kinds of lawsuits that Congress intended to address with the ATS."


December 1, 2020 in Current Affairs | Permalink | Comments (0)

Immigration: Visa applications open under UK's post-Brexit system


Photo courtesy of Don Roth

The BBC reports that the United Kingdom is prepared for a post-Brexit immigration era:

New immigration rules will be "simple and flexible", ministers have promised, as the UK's points-based post-Brexit system prepares to go live.

From Tuesday all foreign nationals, including from the European Union, who want to work in the UK from 1 January will have to apply online for a visa.

Those seeking a skilled worker visa will need a job offer, to be proficient in English and earn at least £25,600.

Free movement from and to the EU will come to an end on 31 December.

EU citizens already living in the UK by 31 December and their families do not have to go through the new system but instead can apply to the EU Settlement Scheme, and have until 30 June 2021 to do so.

If they are successful, they will be able to remain in the UK and claim the same benefits as UK citizens if they become unemployed.

Irish citizens do not need to apply to the scheme and will not require permission to come to the UK, as the UK and Ireland are both part of a Common Travel Area.


The government has announced it is setting up a new Border Operations Centre, which it says will ensure round-the-clock surveillance of goods and passengers coming in and out of British ports for the first time.


December 1, 2020 in Current Affairs | Permalink | Comments (0)

Law360 Immigration Group Of The Year: Mintz


Law360 has named the law firm Mintz Levin Cohn Ferris Glovsky and Popeo PC as the 2020 Immigration Practice Group of the Year.  The firm has fought to protect detained immigrants and Def4erred Action for Childhood Arrivals (DACA)  recipients, and helped businesses secure visas for critical employees.

The Boston-headquartered law firm boasts a roughly 40-person immigration team and has helped major corporations sponsor foreign-born employees on work visas — with a special focus on entrepreneurs and startups.


December 1, 2020 in Current Affairs | Permalink | Comments (0)

Spotlighting Immigrant-Owned Businesses


From Immigrants Rising:

Spotlighting Immigrant-Owned Businesses

In light of the holiday season, we would like to spotlight a handful of immigrant-owned businesses that you can shop alternative to large corporations. Find more immigrant-owned businesses to shop on Immigrants Rising's social media.

Watch Bo's Story

Bo Thai’s Illegal Drip

Bo Thai is an undocumented artist from Thailand and owner of Illegal Drip, a clothing line that blends art and advocacy. Bo is also the co-founder of Monarch Mercado, a network and marketplace for undocumented people to find community, grow, and hustle. Bo graduated from UC Irvine with a degree in International Studies. Watch Bo’s Story

Check out Bo's clothing line at illegal-drip.com

Watch Celia's Story

Celia Serrato’s HerbalHermanasCo

Celia is a co-owner of HerbalHermanasCo, a skincare shop with homemade goods made from natural ingredients. Her products are included in Caja Latina, a monthly subscription box that elevates the Latinx narrative by celebrating the intersectionality of the Latinx identity. Watch Celia’s Story

Check out Celia's skincare shop at etsy.com/shop/HerbalHermanasCo


December 1, 2020 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: The Return of Typhoid Mary? Immigrant Workers in Nursing Homes  by Shefali Milczarek-Desal and Tara Sklar

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The Return of Typhoid Mary? Immigrant Workers in Nursing Homes  by Shefali Milczarek-Desal and Tara Sklar, Journal of Elder Policy (Spring 2021 Forthcoming)


Nursing homes are dependent on immigrant, female labor as nursing aides, yet these workers are provided with minimal employment benefits, which has led to devastating consequences for vulnerable, older residents during COVID-19. Emerging research suggests that aides are contributors to the increase in coronavirus outbreaks due to working in multiple long-term care facilities and refer to these individuals as “superspreaders.” Specifically, aides have been tied to unwittingly passing on the virus as they may be asymptomatic or pressured to work by employers while symptomatic with limited access to paid sick leave. The plight of these women harkens back to “Typhoid Mary”—also a poor, immigrant woman who was accused of spreading typhoid fever a century ago. This Article applies lessons learned from Mary’s shocking and tragic trajectory, then employs critical race and feminist jurisprudence to highlight examples of structural and institutional disparities that exist in current paid sick leave laws. Recommendations call for improved oversight in delivery of quality and safety in long-term care by addressing racial, gender, and economic inequalities through paid sick leave laws coupled with strong enforcement.


December 1, 2020 in Current Affairs | Permalink | Comments (0)

Monday, November 30, 2020

Headline of the Day Goes to Vanity Fair

Talk about a headline. Vanity Fair sure grabs attention with this one: STEPHEN MILLER RACES TO F--K OVER IMMIGRANTS ON HIS WAY OUT THE DOOR. The caps are original.

The article only gets saltier.

First, the author, Bess Levin, opens with her "top hits" of the Trump administration's "despicable" immigration policies: "the travel ban, family separation, and spending billions of dollars in taxpayer money on his ridiculous border wall, but also using ICE to terrorize undocumented immigrants, attempting to allow the deportation of 700,000 people who came to the U.S. as children, cutting the refugee cap to the lowest level in history, and generally demonizing anyone who wasn’t born here and making their lives as miserable as possible."

Levin continues: "Behind these policies was World’s Biggest Bastard nominee for four years running Stephen Miller, the 35-year-old adviser who cut his teeth working for Jeff Sessions and defied his upbringing in Santa Monica to become a white supremacist."


Setting aside the tart language, what exactly is Miller trying to do? According to the article, he's looking to do as much as he can before the Biden administration takes over to slow down and limit legal migration with changes to the citizenship test (discussed on this blog here), update the USCIS policy manual regarding grants and denials of visas, limit work permits for immigrants awaiting deportation but not in custody, and limit H1B visas and making them harder to obtain.


November 30, 2020 in Current Affairs | Permalink | Comments (0)

International students return to Australia following COVID-19 closures

For the first time since COVID-19 closed its borders to international students on March 20, international students are being welcomed back to campuses in Australia. The 70 students in the first cohort are from China, Hong Kong, Japan, Vietnam, and Indoneisa. They arrived to cheers in the Darwin airport.

A pilot program sought to bring back 350 continuing international students to Canberra was delayed after a second wave of coronavirus struck Melbourne. Priority was instead given to repatriating Australians who had been stranded overseas.

Continued expansion of these programs to return international students will help to revitalize an important educational exchange that brings cultural diversity, intellectual talent, and finances to universities. Before COVID-19, approximately 40% of international students in Australia came from mainland China and brought with them $10 billion Australian dollars per year. Yu Tao, a lecturer at the University Western Australia, explained in The Conversation:

It’s essential to recruit and retain international students to sustain and develop Australian higher education. The loss of international student fee revenue has prompted universities to make large job cuts. Many are expected to downsize. Some might collapse.

Similar dynamics exist in other western countries, including the United States. Increasingly international students are being shut out or made to feel unwelcome for reasons varying from public health, to intellectual property, to restrictionist immigration policies. Others are being educated remotely during the pandemic, with varying levels of effectiveness. Universities worldwide are watching for the impacts of these ddevelopments on future enrollment.




November 30, 2020 in Current Affairs | Permalink | Comments (0)

Supreme Court Hears Arguments Today in Trump v. New York


SCOTUSBlog  ran a symposium previewing the Supreme Court argument today in Trump v. New York, the challenge to the Trump administration’s plan to exclude people unlawfully in the country from the state-by-state breakdown used to allocate seats in the House. As Amy Howe describes, "[i]f the court upholds the plan and the administration is able to implement it before leaving office, the new method of apportioning House seats could shift political power away from states with large immigrant populations and toward states with fewer immigrants."

Here are the contributions to the symposium:

Date Author Post Title
11.28.20 Symposium: A not-at-all disguised attempt to shift power away from Latino voters
11.25.20 Symposium: Trump’s census policy is both fundamentally fair and legally sound
11.24.20 Symposium: Depoliticizing the census through administrative process
11.24.20 Symposium: All foreign nationals should be excluded from apportionment. That’s what the Constitution requires.
11.24.20 Case preview: Justices to review Trump’s plan to adjust census data used for congressional apportionment

UPDATE (Nov. 30 3:45 p.m.):  Here is Amy Howe's argument recap from SCOTUSBlog.  Her bottom line:  The Justices "focus[ed] . . . on whether the Supreme Court could or should weigh in now, and by the end it seemed very possible that they may not resolve the merits of the case immediately – if at all."


November 30, 2020 in Current Affairs | Permalink | Comments (0)

First Latino DACA recipient wins Rhodes

CNN reports that, in second grade, Santiago Potes walked into Marina Esteva's gifted and talented classroom at Sweetwater Elementary School in Miami, Florida, for the first time.

He was an undocumented immigrant from Colombia who entered the country when he was 4 years old. Esteva said she quickly noticed his intelligence and wanted to nurture him toward success.
Now, Potes is the first Latino DACA recipient us a Rhodes Scholar.  On Saturday, the Rhodes Trust announced that Potes, a 2020 graduate of Columbia University in New York, would be one of the 2021 Rhodes Scholars.
In their announcement, the Rhodes Trust wrote, "Santiago has been a teaching or research assistant for leading professors in physics, philosophy, social psychology and neuroscience, and won numerous college prizes for leadership as well as academic performance. He is widely published on legal issues relating to DACA status, was one of the DACA recipients featured in a brief filed with the Supreme Court to preserve DACA."

November 30, 2020 in Current Affairs | Permalink | Comments (0)

Faculty Openings: Pace Law School


The Elisabeth Haub School of Law at Pace Universityis seeking to fill two tenure-track/tenured faculty positions, to start in August 2021. 

 We invite applicants with teaching and research interests in any of the following areas:  environmental law, natural resources law, sustainable business law, energy and climate law, public health law, contracts law, business law (broadly defined), and tax law.  Applicants whose interests cover more than one of these areas are encouraged to apply.  Pace’s centers of excellence include the Global Center for Environmental Studies, the Energy and Climate Center, the Brazil-American Institute for Law and Environment, the Criminal Justice Institute, the Institute of International Commercial Law, the Land Use Law Center, the Pace-NRDC Food Law Initiative, the Public Interest Law Center, and the Women’s Justice Center.

 We welcome applications from candidates interested in doctrinal, experiential, and/or clinical teaching, and we especially encourage applications from anyone whose background and experience will enrich the diversity of our faculty.  Pace is committed to achieving completely equal opportunity in all aspects of University life.

Applications should be submitted here and will be considered on a rolling basis.

 Please direct any questions to our Appointments Committee Chair, Professor Margot Pollans, at mpollans@law.pace.edu


November 30, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, November 29, 2020

20 Books About Immigration Everyone Should Read

Check out this Cosmopolitan list.  One of the first on the list:

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The Ungrateful Refugee: What Immigrants Never Tell You by Dina Nayeri

Here is the publisher's blurb for the book:

"Aged eight, Dina Nayeri fled Iran along with her mother and brother and lived in the crumbling shell of an Italian hotel–turned–refugee camp. Eventually she was granted asylum in America. She settled in Oklahoma, then made her way to Princeton University. In this book, Nayeri weaves together her own vivid story with the stories of other refugees and asylum seekers in recent years, bringing us inside their daily lives and taking us through the different stages of their journeys, from escape to asylum to resettlement. In these pages, a couple fall in love over the phone, and women gather to prepare the noodles that remind them of home. A closeted queer man tries to make his case truthfully as he seeks asylum, and a translator attempts to help new arrivals present their stories to officials.

Nayeri confronts notions like “the swarm,” and, on the other hand, “good” immigrants. She calls attention to the harmful way in which Western governments privilege certain dangers over others. With surprising and provocative questions, The Ungrateful Refugee challenges us to rethink how we talk about the refugee crisis."




November 29, 2020 in Books, Current Affairs | Permalink | Comments (0)

A Mother, A Son -- and a 1500 mile search for home

Julie Turkewitz and Isayen Herrera for the New York Times tell the story of a young boy and his mother looking for a home in the pandemic.  Sebastián Ventura's "mother, four months pregnant, rushes to keep up. There are hundreds of people on the highway that night, all Venezuelans who had fled their country’s collapse before the pandemic and found refuge in Colombia. Now, after losing their jobs amid the economic crash that followed the virus, they are trying desperately to get back home, where at least they can rely on family. The global health crisis wrought by the coronavirus has played out most visibly in hospitals and cemeteries, its devastating toll clocked in cases and deaths, its aftermath tracked in lost work and shuttered businesses. But a second, less visible aspect of the catastrophe has unfolded on the world’s highways, as millions of migrants — Afghans, Ethiopians, Nicaraguans, Ukrainians and others — have lost work in their adopted countries and headed home. . . . [W]hen the virus hit, Venezuelans living abroad were often the first to lose jobs in their adopted nations, the first to be evicted from pay-per-day apartments in cities like Lima, Quito, and Bogotá, Colombia’s capital."


November 29, 2020 in Current Affairs | Permalink | Comments (0)

Friday, November 27, 2020

Is Mayorkas the "immigration wizard" who can overhaul exclusionary policies

The Washington Post editorial board joins the chorus of white papers suggesting immigration-related reforms for a Biden Administration. Their article begins by noting the damage done under the formidable "wizard" Stephen Miller: slashing legal migration levels; gutting refugee and asylum admissions; halving the entrance of immediate relatives of current U.S. citizens; and halting the so-called diversity migration program that benefited underrepresented areas like Africa. The editorial board then posits that in order to counter the Trump Administration's changes, President Biden will need to install someone equally with a similarly aggressive vision and adept with the complexities of both immigration law and the administrative process. Alejandro Mayorkas, the nominee for DHS Secretary who previously headed the USCIS, may be the person.

The full article is worth a read. A few lengthy excerpts appear below, focused on legal migration and asylum, two areas that the prior administration wrought the most damage.

Restoring a sane and compassionate immigration system will be largely, though not wholly, within reach of Mr. Biden’s executive powers. He can increase refugee admissions relatively quickly, although it will take time to build back to pre-Trump levels. He can immediately stop work on Mr. Trump’s wasteful wall at the southern border, now funded by cannibalizing dozens of U.S. military programs. He can ensure the renewal of work permits and end the threat of deportation for dreamers, and grant reprieves to hundreds of thousands of migrants whose temporary protected status Mr. Trump tried to remove — even though many have lived here for more than a decade.

It will take longer to undo the hundreds of rule changes the Trump administration used to neuter legal immigration programs, including one that disqualifies green card applicants deemed likely ever to need government benefits. 

Beyond restoration of legal migration via executive actions and regulations, the Washington Post laments asylum.

The politically trickiest part of Mr. Biden’s agenda may be rebuilding the asylum system, which the Trump administration has dismembered under the slander of “catch and release.” No doubt, the country needs a functional process whereby migrants fleeing persecution at home can legally seek asylum here. It will be Mr. Biden’s challenge to rebuild such a system without establishing a magnet for new waves of illegal immigration.


November 27, 2020 in Current Affairs | Permalink | Comments (2)

Supreme Court considers Trump's plan to adjust census based on immigration status


Mark Walsh for the ABA Journal previews three of President Trump immigration-related initiatives before the Supreme Court.. Two have not yet been scheduled for argument and may be mooted if President-elect Biden moves quickly to change policies.

One involves a policy known as Migrant Protection Protocols, in which immigrants from Central America who passed through Mexico to reach the U.S. border have been returned by U.S. authorities to Mexico while their removal proceedings are pending. The other involves a challenge to the Trump administration’s use of some $2.5 billion in Department of Defense funds to build parts of a border wall with Mexico.

A third Trump administration action will be argued before the Court next Monday. The case raises the specter that the outgoing president will be able to put a stamp on decennial census numbers and the apportionment of Congress that could benefit Republicans for a decade.   Trump v. New York raises the question whether the president may exclude immigrants unlawfully living here from the base population number of the 2020 census that is used for the apportionment of seats in the U.S. House of Representatives. Here is Amy Howe's preview of the arguments in Trump v. New York.


November 27, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, November 26, 2020

Happy Thanksgiving! All of us should thank farmworkers

While Thanksgiving may look different this year, at least one thing will remain unchanged: Migrant farmworkers continue to ensure that food reaches our tables. They’re doing essential work in spite of the disproportionate impact the pandemic has had on them and continued hostility from the Trump administration, which earlier this month moved to freeze the wages of H-2A workers for the next two years at their current pay, according to NPR’s Dan Charles. The administration estimates that change will yield workers $170 million less in wages annually. 


November 26, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, November 25, 2020

33 Unaccompanied Minors Returned to Guatemala in Contravention of Court Order

Professorsolo2015, CC BY-SA 4.0, via Wikimedia Commons

BuzzFeed News has a shocking story: 33 unaccompanied minors were deported to Guatemala despite a preliminary injunction issued by federal judge Emmet Sullivan that should have prevented the flight.

According to ICE, the agency did not learn of the injunction until the flight had landed in Guatemala, despite the fact that it was issued before the flight had even left the United States.

It's unclear what will happen to the affected children at this point.


November 25, 2020 in Current Affairs | Permalink | Comments (0)

Biden discusses plans for first 100 days

In an interview with Lester Holt of NBC News yesterday, President-elect Joe Biden pledged he will "send an immigration bill to the U.S. Senate with a pathway to citizenship for over 11 million undocumented people in America" within his first 100 days in office.


November 25, 2020 in Current Affairs | Permalink | Comments (0)

Trump administration settles lawsuit from U.S. Latinas detained after speaking Spanish


NBC News reports that two U.S. women who were detained by Customs and Border Protection after they spoke Spanish at a convenience store in Montana two years ago settled their lawsuit against the Trump administration, the American Civil Liberties Union announced yesterday.

The U.S. citizens, Ana Suda and Martha "Mimi" Hernandez, were talking in Spanish as they shopped for food in May 2018 in Havre, a town about 35 miles from the Canadian border. The Border Patrol officer, Paul O'Neal, "singled out, detained, and interrogated" the women "because he heard them speaking Spanish," the lawsuit alleges.

The women recorded their exchange with O'Neal on video. The video, shows Suda asking the officer why he is asking them for their identifications.

"Ma'am, the reason I asked you for your ID is because I came in here, and I saw that you guys are speaking Spanish, which is very unheard of up here," O'Neal responds. Suda then asks him whether she and Hernandez are being racially profiled; O'Neal responds no.

Here is the ACLU Montana announcement of the settlement:

"Ana Suda and Martha `Mimi' Hernandez, two American citizens detained by U.S. Customs and Border Protection (CBP) for speaking Spanish while shopping at a local convenience store in Havre, Montana, have reached a settlement in their lawsuit against the Trump administration. Their lawsuit brought to light systemic racism on the northern border.

The American Civil Liberties Union, ACLU of Montana, and law firm Crowley Fleck PLLP represent the two women.

Suda and Hernandez were simply standing in line waiting to pay for groceries when CBP Agent Paul O’Neill approached them, commented on Hernandez’s accent, and asked where the women were born. They responded Texas and California, respectively. The agent then ordered them to show identification, and they immediately presented their valid Montana driver’s licenses. 

There was no reason to believe that either woman had violated any law, but O’Neill still detained them in the parking lot. They began filming him, asking him why he targeted them. He said it was because they were “speaking Spanish in the store in a state where it’s predominantly English speaking.” O’Neill offered no other justification for detaining and interrogating them. Watch the video.

Through the lawsuit, it was revealed that local CBP agents have engaged in a longstanding pattern of abusive seizures and investigations. Agents from the local administrative CBP unit — known as the `Havre Sector' — have repeatedly targeted Latinx individuals without justification, often based on their race. One such incident led to a published Ninth Circuit opinion holding that CBP agents illegally detained a group of men in Havre in 2006.

In materials produced as a result of the lawsuit, CBP agents admitted they routinely profile non-white individuals in the Havre Sector. According to a CBP supervisor, `We have a lot of agents here and nobody really has much to do.'

He recounted seeing `two Mexicans' while off duty in a local mall. He was about to report the two shoppers to CBP so that the agency could send an agent — only to find that another off-duty CBP agent had already made the same report.

For these agents, people are suspicious if they do not fit their profile of a typical resident of Havre — i.e., if they are not white.

Evidence uncovered in the suit also revealed that O’Neill was a member of the now defunct `I’m 10-15' Facebook group where CBP agents joked about the deaths of migrants, discussed throwing burritos at Latino members of Congress visiting a detention facility in Texas, and posted a vulgar illustration depicting U.S. Rep. Alexandria Ocasio-Cortez engaged in oral sex with a detained migrant.

Through the discovery process, O’Neill also handed over a number of inflammatory and racist text messages confirming his anti-immigrant bias. Watch the video

`As if the racism they experienced at the hands of CBP agents were not enough, our clients also bore the brunt of local backlash as a result of coming forward. They both ultimately left Havre for fear of their families’ safety,' said Caitlin Borgmann, executive director of the ACLU of Montana.

`We stood up to the government because speaking Spanish is not a reason to be racially profiled and harassed.  I am proud to be bilingual, and I hope that as a result of this case CBP takes a hard look at its policies and practices,' said Suda. `No one else should ever have to go through this again.'

`CBP’s behavior was unconscionable and illegal, but sadly not uncommon. This agency must be held accountable,' said Cody Wofsy, a staff attorney with the ACLU’s Immigrants’ Rights Project.

The settlement involves a monetary sum. Under the Biden administration, the ACLU will continue to hold the federal government and the Department of Homeland Security accountable to the people."


November 25, 2020 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Coordinating Injunctions by Bert Huang


Coordinating Injunctions by Bert Huang, Texas Law Review, Vol. 98, 2020


Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice—“Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then proposes a solution: When faced with a possible clash of injunctions, each district judge should issue or stay her intended relief in accordance with the real-world outcome she thinks the majority of district judges would choose. Following such a shared convention, judges with diverse views will have a better chance of avoiding a clash because their estimates of the majority view are probably more similar than their individual views. And a stay would not signify abandoning a judge’s own views (which are still fully aired in her written opinion) but would instead reflect an awareness that other judges’ views may differ—akin to the existing practice of a stay pending appeal. Notable complications are addressed, including the first-mover advantage of the earliest judge to act; the role of the appeals courts; the possibility of circuit splits; and how such a shared convention might break down.


November 25, 2020 in Current Affairs | Permalink | Comments (1)