Transnational Migration Deterrence

The governance of global migration increasingly relies on what critical migration scholarship refers to as externalized control. Externalization encompasses limiting human mobility through the imposition of migration control measures by transit states, as well as by states that are geographically proximate to destination states. Destination states are at a minimum complicit in the creation and operation of these externalized migration control systems. To capture this phenomenon, this Article offers a reconceptualization of externalization as transnational migration deterrence. The objective of this nomenclature is to provide a framework that highlights the role of destination states, to build a lexicon of accountability for extraterritorial human rights violations against migrants. Transnational migration deterrence systems often arise through ad hoc policies and practices, typically as a response to a migration “crisis,” and continue there-after as long-lasting mechanisms of regional migration control. Destination states typically provide assistance for less-resourced states to carry out migration control on their behalf through financial and logistical support, while also levying threats if they fail to deter migration. This Article begins with transnational migration deterrence in the Americas, describing first the historical context of the U.S.-Caribbean migrant deterrence system and then present-day migration control practices between the United States, Mexico, and Central America. It then turns to the transnational migration deterrence systems in Europe and Australia, chronicling arrangements of interdiction at sea and offshore detention in both regions. The Article concludes by exploring a framework of accountability that recognizes the relational nature of how externalized migration controls are operationalized, emphasizing the need for systems of accountability with respect to destination countries’ role in migration deterrence practices

Employee Noncompetition Laws and Practices: A Massachusetts Paradigm Shift Goes National

After 10 years of legislative gestation, the Great and General Court passed, and Governor Charlie Baker signed, the Massachusetts Noncompetition Agreement Act (“MNAA” or “Act”), G.L. c. 149, § 24L added by St. 2018, c. 228, § 21, effective prospectively only (§ 71) for agreements entered into on or after Oct. 1, 2018. The Act dramatically reduces the number of Massachusetts employees who can be subjected to an enforceable noncompetition agreement, and even when such agreements are permitted, employees are afforded stronger substantive and procedural protections than in the past, while employers are limited to substantially reduced post-employment restrictions. The Act represents a paradigm shift in favor of employees, particularly hourly workers, but employers retain many options and may benefit from a perhaps greater clarity and certainty in drafting valid and enforceable noncompetition agreements. The common law will continue to have vitality, however, because the legislature chose to address only employee noncompetition agreements, and even as to those agreements, it left many related restrictions in place and codified aspects of the common law that will continue to require case-by-case exposition. Thus, an understanding of the common law background assumed to continue to govern unless changed by the Act (or later amendments), is necessary to a full understanding of the Act. In the midst of this legal turmoil, and in discussing a statute for which the interpretive process of court decisions has barely begun, the authors necessarily venture few definitive conclusions about the MNAA. Instead, we attempt to describe the Act’s most important features and focus on some questions that remain to be resolved, in the belief that at this stage of the legal process most practitioners are attempting to do the same in order to guide and protect their employer and employee clients

There\u27s No Place Like Dot-Com: Are Websites Places of Public Accommodation Under Title III of the ADA?

On April 7, 2021, in Gil v. Winn-Dixie Stores, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that websites are not places of public accommodation pursuant to Title III of the Americans with Disabilities Act. Before the Eleventh Circuit vacated its decision in December 2021, it joined the majority of circuit courts in a split regarding whether Congress intended Title III to apply to websites and other non-physical places. The First, Second, and Seventh Circuits considered Title III’s language broad or ambiguous enough to include web-sites. Conversely, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits held that Title III unambiguously excludes websites and other non-physical places. Although it vacated Gil, the Eleventh Circuit’s reasoning provides valuable insight as to how this court will decide when it hears another Title III appeal in the future. This comment argues that the Eleventh Circuit, with its extremely narrow interpretation of Title III, erred by disregarding the ambiguity of the Act’s language and should have construed the statute in light of Congress’s purpose

(Ven)mo Money, (Ven)mo Problems? How Money Laundering Permeates Peer-to-Peer Payment Platforms

In the last decade, new payment forms known as peer-to-peer (P2P) payments have become widely accepted and mainstream across the United States. Driven by young consumers, these innovative platforms overcame many barriers presented by traditional payment systems. With this innovation, however, comes increased potential for abuse. P2P platforms operate outside of pure banking transactions, allowing for quick payments through either fiat currency or cryptocurrency between individuals, making these applications ripe for criminal activity. Although the United States has robust money laundering laws, P2P platforms do not fully fit within their boundaries, allowing criminals to abuse the system to move and access illicit funds. These laws serve as a solid foundation for anti-money laundering procedures on P2P systems, but with some finetuning, Congress can extend these regulations to fully capture criminal conduct across P2P applications. This Note analyzes how P2P payment applications fit within traditional financial technology regulation. This Note argues that, under federal law, P2P platforms should enhance their risk-based customer monitoring to surveil user accounts that link multiple payment forms, institute a short screening period on transactions for anti-money laundering risk compliance, and rigorously assess cryptocurrency transfers, similar to how they assess fiat currency transfers

Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have become even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to virtually all approaches to the issue: What must a government do to justify restrictions on religious exercise? Every extant adjudicatory framework—including proportionality and strict scrutiny approaches—purports to require such governmental justification. But they do so through different frameworks and with dramatically different degrees of rigor. In our view, it is rigor and not labels that really counts—the rigor with which courts require governments to justify religious restrictions. Differences in rigor cannot be explained in terms of the underlying adjudicatory framework. Neither the proportionality framework that prevails internationally nor the strict scrutiny framework prominent in the United States suffices, standing alone, to require governments to meaningfully justify restrictions on religious exercise. To require genuine justification, courts must: (1) require governments to treat religiously-motivated conduct in an evenhanded way vis-à-vis analogous secular conduct; (2) oblige governments to show, with evidence, that the religious restrictions are necessary; and (3) avoid redefining a controversy’s theological stakes in ways that minimize the religious claimant’s dilemma. Proportionality and strict scrutiny are both capable of incorporating these three factors, but courts applying the two tests do not always do so. In this Article, we survey how courts across several jurisdictions have succeeded or failed in this regard, paying particular attention to conflicts arising in the COVID-19 context. We also suggest some possibilities of convergence that will help both proportionality courts and strict scrutiny courts to better protect the core substance of religious liberty

Medicare Bankruptcy

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to make insolvency less unfair, less harmful, less likely, and more effective as a tool to promote compromise and cost control in the program. In short, this Article argues for the establishment, by law, of rules to govern Medicare bankruptcy. The Article’s analysis of how an insolvent Medicare program would work reveals several unsettled legal questions, resolution of which would determine insolvency’s harms, who would pay them, and when. Uncertainty surrounding the consequences of insolvency would be problematic from the ex-post perspective because it would increase the unfairness and magnitude of the associated harms. Further, such uncertainty is already problematic from the ex-ante perspective of a program in a five-decade cycle of insolvency because it inhibits compromise and disincentivizes Medicare’s powerful industry constituents from using their influence to promote cost control. In developing this normative insight, this Article for the first time applies the structural, ex-ante theoretical perspective developed in the municipal bankruptcy literature to the law and political economy of a federal spending program. It concludes by addressing the roles of Congress, the Department of Health and Human Services, and courts in clarifying the consequences of Medicare insolvency. Although a partial framework could and should be established by regulation in the short term, this Article calls for a Medicare bankruptcy provision ultimately to be included as a failsafe in future legislation, if and when it comes, to address the current crisis

Ransomware, Cyber Sanctions, and the Problem of Timing

This essay argues that the lack of a federal blanket prohibition against ransomware payments undermines the purpose and effectiveness of the U.S. sanctions regime. The U.S. cyber-related sanctions program suffers from an essential problem of timing: often payments to malicious cyber actors are not prohibited until those actors have been named to the Specially Designated Nationals and Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. Yet those actors generally are not so designated until they have been identified as malicious through a completed or attempted attack. Further, the time between a cyberattack and the designation of a party as an SDN is generally not short enough to prohibit the making of a ransomware payment in response to an attack itself. A blanket prohibition against the making of ransomware payments would supplement the OFAC regulations and remedy a structural shortcoming of that regulatory scheme

“Dueling” Experts and the False Claims Act: Weaponizing Legal Falsity to Combat Hospice Fraud

In 2020, in United States ex rel. Druding v. Care Alternatives, the United States Court of Appeals for the Third Circuit advanced a broad interpretation of “falsity” under the federal False Claims Act (FCA) to allow conflicting medical opinions on a patient’s medical prognosis as evidence of false certification for hospice eligibility. In doing so, the court rejected a blanket rule that clinical judgments are immune from legal challenge and dismissed an “objective falsehood” requirement because it inappropriately conflated elements of the statute. The holding has important implications in industries with high risk for fraud, particularly the for-profit hospice industry that contracts with Medicare. This Comment argues that the Third Circuit’s liberalization of the falsity element aligns with congressional intent to create broad FCA liability for any attempt to defraud the government. Moreover, the Third Circuit’s approach incentivizes entities that receive federal funding to strengthen internal oversight and compliance programs