Lewis & Clark Law Review - Law School - Lewis & Clark

                  

ARTICLES

 

MAKING LEGAL: THE DREAM ACT, BIRTHRIGHT CITIZENSHIP, AND BROAD-SCALE LEGALIZATION

Hiroshi Motomura

16 Lewis & Clark L. Rev. 1127 (2012)

Some of the most controversial topics in immigration and citizenship law involve granting lawful immigration status—or citizenship itself—to persons who might otherwise be in the United States unlawfully. In this Article, I examine arguments for and against three ways to confer lawful status: (1) the DREAM Act, which would grant status to many unauthorized migrants who were brought to the United States as children; (2) the Fourteenth Amendment to the Constitution, under which almost all children born on U.S. soil are U.S. citizens; and (3) broad-scale proposals to grant lawful immigration status to a substantial percentage of the current unauthorized population. I first explain how arguments both for and against the DREAM Act reflect some mix of fairness and pragmatism. Though birthright citizenship seems different from the DREAM Act, the arguments are similar. I next show that although children figure much more prominently in the DREAM Act and birthright citizenship, similar patterns of argument apply to broad-scale legalization, and the arguments in favor are just as strong. Finally, I explain that the “rule of law” is a highly malleable concept that provides no persuasive case against any of these ways to confer lawful immigration or citizenship status. Rule of law arguments in favor of conferring status are stronger than rule of law arguments against doing so.

THE CURIOUS RELATIONSHIP BETWEEN “SELF-DEPORTATION” POLICIES AND NATURALIZATION RATES

Angela M. Banks

16 Lewis & Clark L. Rev. 1149 (2012)

Governor Mitt Romney has stated that the country’s immigration problems can be solved through “self-deportation.” Arizona, Alabama, Georgia, South Carolina, and Virginia agree. For example, K–12 public schools in Alabama are required to ascertain the immigration status of all enrolling students. Police officers in Arizona, Alabama, Georgia, South Carolina, and Virginia check the immigration status of all individuals booked into jail. These “self-deportation” laws and policies, also known as immigration enforcement through attrition, are designed to discourage and deter unauthorized migration. Yet these policies are having a broader impact; they are creating a hostile context of reception for immigrants regardless of their immigration status. Social scientists have found that immigrants’ structural and cultural environment—their context of reception—plays an important role in shaping their incorporation patterns, including naturalization rates.

Based on this social science research, I offer a new argument about the impact of sub-federal immigration enforcement. Sub-federal immigration enforcement has overwhelmingly taken the form of “self-deportation” laws and policies. It is my contention that the growth of these policies may discourage eligible immigrants from naturalizing. The use of racial profiling to implement these policies shapes immigrants’ perceptions about the value of citizenship. It reveals that ethnicity, foreignness, and immigration status are often conflated, and that the social benefits of citizenship are not equally available to all. Recognition of this reality may cause some immigrants to conclude that the benefits of naturalization do not outweigh the costs. While “self-deportation” policies may successfully deter and discourage unauthorized migration, they may also discourage eligible Latino immigrants from naturalizing and becoming formal members of U.S. society.

RAISING ARIZONA V. UNITED STATES: HISTORICAL PATTERNS OF AMERICAN IMMIGRATION FEDERALISM

Daniel J. Tichenor & Alexandra Filindra

16 Lewis & Clark L. Rev. 1215 (2012)

Immigration policy and regulation have been hotly contested issues in the United States since the 1800s. At the center of this historic immigration debate have been issues of federalism and core questions under the United States Constitution. Arizona v. United States, one of the Supreme Court’s blockbuster decisions of the summer of 2012, has brought to the forefront once again pressing constitutional questions regarding immigration. The first Part of this Article begins by exploring the historic role the federal government has played in immigration policy. The historic evidence demonstrates that the federal government regularly has been a reluctant and lethargic actor when it comes to addressing emergent regulatory challenges and controversies. The curbed federal enthusiasm for immigration enforcement has also led to a historic pattern of state governments actively pressing the federal government to assume greater responsibility over immigration. Where states have been invited by the federal government to enforce immigration policy, the resulting enforcement regime has been one that is collaborative in nature, rather than following a strict division of labor. In short, despite the “plenary power” doctrine and myths of exclusive federal control over immigrant admissions and rights, the states have routinely left their mark on the formation and outcomes of U.S. immigration policies. The second Part of this Article explores the key features and significance of the Supreme Court’s Arizona v. United States decision, reviewing its interpretation of federal preemption doctrine and the relative immigrant enforcement power of the states. The third Part of this Article explores states as immigration policy combatants, specifically analyzing three forms of state immigration activism nurtured by the dynamics of American federalism. The final Part of this Article analyzes Arizona’s S.B. 1070, and other recent state laws, to capture our three forms of devolution operating in contemporary American immigration politics. This Article concludes that even in a domain presumed to be the sole responsibility of the federal government, states and local governments have played significant roles in shaping and implementing immigration law and policy.

THE RELATIONAL NATURE OF PRIVACY

Laurent Sacharoff

16 Lewis & Clark L. Rev. 1249 (2012)

The hard Fourth Amendment cases, especially those involving surveillance, ask whether the police investigative tactic at issue counts as a “search;” if not, the Fourth Amendment does not apply at all. Under the Court’s main test, at least for surveillance without a trespass, the police conduct a “search” if they invade a person’s reasonable expectation of privacy.

But when the Court assesses Fourth Amendment privacy, it treats it as an all-or-nothing concept without regard to the relation between the person searched and the person searching. For example, the Court has held that when the police rummage through a person’s garbage left curbside, this conduct does not amount to a search. The Court reasoned that a person does not expect privacy in his garbage in relation to animals, scavengers, or children, and therefore has no privacy in his garbage with respect to anyone, including the police.

This Article argues that in assessing the Fourth Amendment, the Court should take into account the relational nature of privacy, and acknowledge that we have a greater expectation of privacy as against the government than we do as against our neighbors and friends. In fact, we desire and expect the highest level of privacy when the government pursues a criminal investigation, and it is here the Fourth Amendment should play its greatest role. This follows based upon the relational nature of privacy, certain lines of Supreme Court precedent, such as the inventory and administrative search cases, and the history of the Fourth Amendment, rooted especially in the seminal John Wilkes cases, which were initiated as a criminal case.

 

ESSAY

 

BREVITY IS THE SOUL OF WIT: NGUYEN IS DEAD

Stephen Kanter

16 Lewis & Clark L. Rev. 1305 (2012)

Flores-Villar v. United States signals a significant shift in the Supreme Court’s mid-level equal protection treatment. Because the Court affirmed the lower court by a 4–4 decision, the Court gave only opaque clues to the current status of the gender discrimination standard expressed by Nguyen v. INS. Both cases are remarkably similar and only ten years apart. Yet, despite all odds, the Court granted certiorari. Even though the Court affirmed the Ninth Circuit opinion following Nguyen, the nine-word opinion is enough to show that four justices disagree with Nguyen and a fifth justice is likely to join them. If Justice Kagan had not needed to recuse herself, Nguyen would likely be overruled. This Essay predicts that the equally divided court of Flores-Villar signals the silent death of Nguyen v. INS and a return to the Court’s stronger commitment to gender equality as reflected in United States v. Virginia.

 

NOTES & COMMENTS

 

THE AUTHORS GUILD V. HATHITRUST: A WAY FORWARD FOR DIGITAL ACCESS TO NEGLECTED WORKS IN LIBRARIES

James Aaron

16 Lewis & Clark L. Rev. 1317 (2012)

Due to changes in copyright law since the United States joined the Berne Convention, a growing number of copyright holders cannot be located. This leads to a market failure in which those who would pay a reasonable licensing fee nevertheless cannot make use of the works. While past literature has focused on desired commercial uses of these so-called orphan works, the recent case of The Authors Guild v. HathiTrust has brought the issue of educational, nonprofit uses of these works to the fore. This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.

THE PROPER APPLICATION OF DAUBERT TO EXPERT TESTIMONY IN CLASS CERTIFICATION

Meredith M. Price

16 Lewis & Clark L. Rev. 1349 (2012)

Class certification is an important, if not the decisive, issue in class action lawsuits. This Comment explores the current approach by certain courts to permit the use of testimony and evidence during class certification that is excused from the rigors of evidentiary rules applied at trial. In particular, the rule from Daubert v. Merrell Dow Pharmaceuticals, Inc. established that a judge must ensure that evidence admitted at trial is not only relevant, but also reliable. Critics of applying Daubert at class certification have argued that Daubert is meant to serve as a gatekeeping function for the jury, not a judge ruling on a class certification motion. This argument rings hollow. A judge who would exclude evidence at trial should not have to invent a new, potentially malleable standard to determine whether evidence is reliable at class certification. The purpose of this Comment is to establish why Daubert provides the best and clearest standard for federal courts to apply to evidence used during class certification.

Part I of this Comment explores the class certification requirements under Rule 23 of the Federal Rules of Civil Procedure and the circuit split surrounding the application of Daubert at class certification. Part II of this Comment will provide a basic overview of the varying interpretations of Daubert in class certification. Next, a thorough explanation of how Daubert operates and applies at class certification will be detailed. Finally, this Comment will address the risk that meticulous adherence to Daubert during class certification may have on efficient discovery. Part III will address in detail the current circuit split on the application of Daubert at class certification, most directly evidenced in the conflicting opinions between the Seventh Circuit and Eighth Circuit. Ultimately, this Comment will demonstrate that the Eighth Circuit’s dismissal of a full application of Daubert is both incorrect and based on a cursory and misplaced review of the Daubert test. Moreover, this Comment will explain why the application of Daubert is an important question separate and apart from the requirement that district courts rigorously analyze a motion for class certification. This Comment concludes that the Supreme Court should adopt the full Daubert standard as a necessary duty that a district court must undertake when analyzing expert testimony used to certify a class and should hold that for a district court to forgo this analysis is itself a dereliction of the court’s duty.

A STRUCTURAL APPROACH TO JUDICIAL TAKINGS

Michael R. Salvas

16 Lewis & Clark L. Rev. 1381 (2012)

The Supreme Court has never extended the Takings Clause of the Fifth Amendment to apply to state court actions, but it came close in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. This Note takes a structural approach to judicial takings to determine if they are justified, and, if not, to determine what different approach would be warranted.  After introducing a structural theory of incorporated rights, the Note examines whether the original meaning of the Takings Clause, viewed through the twin lenses of structural federalism and the Fourteenth Amendment, supports the concept of a judicial taking.   It also looks at the different considerations at play when determining whether a state common-law court has taken property.  In sum, the Supreme Court’s current non-trespassory takings jurisprudence is structurally sound, but extending that jurisprudence to state court decisions is not.  This Note concludes that another doctrine, Due Process, provides better protection against state court “takings.”