Category: Past Issues

Kit Johnson. Legal scholarship lacks a comprehensive account of the theoretical underpinnings of immigration law. This Article attempts to fill that void by identifying four theories to explain various aspects of immigration law and the arguments advanced in support of such law: (1) individual rights theory, which turns on the prospective migrant’s right of entry into the United States, (2) domestic interest theory, which considers whether and to what degree allowing migrants into the United States will benefit the country as a whole, (3) national values theory, which focuses on whether the admission of migrants promotes the fundamental values of the country, and (4) global welfare theory, which considers how immigration decisions at the domestic level affect the political, social, and economic makeup of the global community. This Article argues that the universe of theoretical arguments must be employed to evaluate immigration policy proposals. This conceptual…

Oren Gross. Many regard the Constitution as part of the holy trinity of American secular religion. A venerated document, it is often referred to in religious terms. A “kind of Ark of the Covenant of the New Israel that is America,” this “most wonderful instrument ever drawn by the hand of man,” was “divinely inspired,” and ought to be safeguarded with a “holy zeal.” A President and a Chief Justice exhorted the teaching of the principles of the Constitution in terms that in the Jewish prayer book referred to divine commandments: “[T]each them to your children, speak of them when sitting in your home, speak of them when walking by the way, when lying down and when rising up, write them upon the doorplate of your home and upon your gates.” The Constitution is the most recent chapter in a…

Derek Funk. The legal definition of marriage is currently a prominent issue in political debates and courtrooms across the nation.  Up until the late 1990s, state and federal law universally defined marriage as between a man and a woman.  The push for recognition of same-sex marriages began to gain momentum in 2000, when Vermont became the first state in the U.S. to legalize same-sex civil unions and registered partnerships.  In the next few years, several other states across the nation changed their definitions of marriage to include same-sex couples.  Nevertheless, the federal definition of marriage under the Defense of Marriage Act (“DOMA”), enacted in 1996, continued to define marriage as meaning only a legal union between a man and a woman as husband and wife. As more and more states changed their definitions of marriage, same-sex marriage advocates criticized the federal…

Mark J. DeLuca. Private equity funds in the U.S. are known for generating large profits and, consequently, making fund managers extremely wealthy. But is the sun now beginning to set on this this level of profitability? For the first time, a court has determined that a private equity fund was engaged in a “trade or business” for purposes of the Multiemployer Pension Plan Amendments Act (“MPPAA”). In the eyes of pension funds and the Pension Benefit Guaranty Corporation (“PBGC”), both of whom want to reach deep pockets to ensure that employee pension benefits are paid in full, this is a significant step in the right direction. The door has now been opened, at least in the First Circuit, for pension funds to go after private equity investors when seeking to recover from companies that withdraw from multiemployer pension plans. This is…

Jens Dammann. Entrepreneurs enjoy considerable freedom in choosing the rules that will govern their firms. As a general rule, they are able to select not only the state of incorporation, but also the entity type. When making these choices, entrepreneurs have reason to care about the extent to which other firms are using a particular legal regime. Traditionally, corporate law scholarship on this topic has drawn attention to the relevance of the number of other firms using a given legal regime. Drawing on insights from network theory, Michael Klausner has famously shown that the benefits of a particular legal regime increase as more firms come to use it. This article does not dispute that the number of other users matters, but argues that the qualitative features of a legal regime’s users are relevant as well: in particular, firms benefit if…

Erica Beecher-Monas. Scientists and jurists may appear to speak the same language, but they often mean very different things. The use of statistics is basic to scientific endeavors. But judges frequently misunderstand the terminology and reasoning of the statistics used in scientific testimony. The way scientists understand causal inference in their writings and practice, for example, differs radically from the testimony jurists require to prove causation in court. The result is a disconnect between science as it is practiced and understood by scientists, and its legal use in the courtroom. Nowhere is this more evident than in the language of statistical reasoning. Unacknowledged difficulties in reasoning from group data to the individual case (in civil cases) and the absence of group data in making assertions about the individual (in criminal cases) beset the courts. Although nominally speaking the same language, scientists…

Kathryn E. Brown. Dylan McNabb was 19 years old when he murdered his grandmother. On the day of the murder, Dylan smoked a drug commonly known as “bath salts” and returned home to 78-year-old Imogene McNabb. Believing that she was possessed, Dylan picked up a shotgun and shot Imogene in the head, killing her. In an interview after the incident, Dylan reported that he believed she was the Antichrist and she intended to kill him. As of the time of this writing, he is in jail, awaiting trial for one count of first-degree murder. The stories stemming from bath salts use are truly stranger than fiction. After using bath salts, a 24-year-old Tennessee man jumped out of a third floor window to prove he was a god, and then got up and jumped off the second floor balcony on which…

Tamara Herrera. One only needs to read the latest legal blog or newspaper to find a story about ambiguous statutory language at the center of a dispute. Courts solve these disputes in a variety of ways, including using statutory interpretation tools, such as textual aids, canons of construction, and legislative history. Of course, not every scholar or judge agrees on when, how, and even if a court should employ these tools. On the one hand, textualists follow a formalist approach that requires a court to look to just the text in interpreting a statute and to reject tools that consider extrinsic evidence, such as legislative history. On the other hand, purposivists believe the most important goal is to find the legislative purpose or intent behind the statute, which may require the court to rely on legislative history. What is missing from…

Phillip Londen. At the age of nineteen, Shamoon Yousif moved from Iraq to Mesa, Arizona, where he opened two grocery stores. After his wife was diagnosed with metastatic breast cancer, Yousif asked his brother Sami to manage one of his grocery stores. Unbeknownst to him, Sami began to stock Yousif’s store with stolen goods purchased from “boosters” for resale. In May 2008, police seized much of Yousif’s assets—including his home, his car, his two stores, his bank accounts, and his recently-deceased wife’s jewelry. Police seized the property pursuant to an ex parte seizure warrant based only on probable cause. His property was seized without prior notice, and he was denied a prompt post-seizure hearing to challenge the seizure. Yousif was charged with a number of racketeering offenses, including trafficking in stolen property, fraudulent schemes and artifices, and illegally conducting an enterprise.…

Daniel G. Orenstein. American marijuana policy is evolving at a breakneck pace, politically speaking. After decades of strict criminal penalties, functional holds on much research, and political and popular demonization (exemplified by the epigraph above from propaganda-film-turned-cult-favorite, “Reefer Madness”), changes are now coming surprisingly quickly. With the leash of federal policy loosening of late, many states are taking bold policy steps to adopt new approaches to marijuana that range from evolutionary (limited medical use) to revolutionary (legalization and taxation of adult recreational use). Medical marijuana laws in particular have spread quickly, with twenty-three states and the District of Columbia now allowing some form of lawful medical use. Like many of these states, Arizona’s medical marijuana  program is experiencing policy growing pains as conflicts arise between the new program’s legal framework and other laws. Among other issues, Arizona’s medical marijuana law raises difficult…