Preclusive Jurisdictional Dismissals

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still be fruitless and justly precluded. However, this pragmatic approach, and the rich body of scholarship accompanying it, vanishes in cases where the rendering court declares that it lacks jurisdiction and does not attempt to decide the case on the merits. Courts confronted with the preclusive effect of such jurisdictional dismissals default to the longstanding view that such dismissals carry no preclusive effect on relitigation on the merits. This Note challenges this bright-line rule by arguing that where a jurisdictional dismissal is predicated on a determination that is intertwined with the merits, the values underlying preclusion should take priority

Probation Without a Home: How Probation Maintains Barriers to Successful Completion While Homeless

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. For homeless people, probation is often just a stepping stone to incarceration instead of a turn away from it. Using Illinois as a case study, this Comment demonstrates the way the criminalization of homelessness makes probation especially difficult for those without housing to successfully complete. There are over 470,000 people on probation in Illinois, compared to just over 27,000 in the Illinois prison population. Illinois does not keep statistics about the number of probationers experiencing homelessness or housing insecurity, so studying the exact impact of homelessness on probation in Illinois is difficult. Studies from other areas of the country show that people who are facing housing insecurity are 36% more likely to unsuccessfully complete probation. Several general probation requirements are difficult for homeless people to follow. Requirements such as reporting to parole officers, avoiding interactions with law enforcement, not associating with convicted felons, and regularly appearing for court dates present unique problems for people without homes. To help alleviate the inequalities within the system, probation departments should begin collecting data on the housing status of probationers, create dedicated homeless programs within probation offices, work on inter-agency and resource collaboration for homeless services, end incarceration for probation violations, and invest in permanent supportive housing

The Meaning of Life, in Michigan: Mercy from Life Sentences Under the State Constitution

Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release through rehabilitation. Today, however, Michigan has among the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release. In 1850, Michigan revised its state constitution to prohibit “cruel or unusual punishment,” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment. This disjunctive prohibition, which subsequent Michigan constitutional conventions retained, prohibits both “cruel” sentences and “unusual” sentences. We argue that under the original meaning of Michigan’s “cruel or unusual punishment” clause, life without parole sentences violate the state constitution. Admittedly, there is no direct evidence of what would have made a sentence “cruel” for the drafters of the 1850 constitution. We therefore turn to two other sources for clues—debates surrounding a different provision of the 1850 constitution and evidence of parole and commutation practices at that time. Both sources point to the same conclusion: “cruel” punishments foreclose a meaningful opportunity for future release based on rehabilitation. Consistent with this original understanding, Michigan rejected permanent punishments for well over 100 years after the 1850 convention. Michigan did not send people to prison without a chance of release. Instead, even people technically serving “life without parole” were routinely considered for and awarded release based on rehabilitation, making permanent incarceration “unusual” to the point of nonexistent. Michigan today has one of the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release. Thus, as practiced in Michigan today, life sentencing is “cruel” and “unusual”—and thus doubly unlawful under the original meaning of the “cruel or unusual punishment” clause

Filling in the Gaps: How The Equal Employment Opportunity Commission Can Enhance Protections For H-1B Visa Holders

H-1B Specialty Occupations Visas allow numerous foreign nationals to obtain a pathway for entry into the United States through their hard-earned efforts and specialized skills. After meeting stringent requirements and completing complex processes, holders of H-1B visas may begin working in America. Unfortunately, when these individuals come to the land of opportunity, they encounter a harsh reality of employment: the incessant discriminatory abuse of H-1B visa holders by their employers. H-1B employees endure severe working conditions, long hours, unattainable deadlines, wage disparities, and racial biases as they navigate an unknown nation. Employers tend to exploit H-1B workers because these visa holders are essentially “handcuffed” to their positions in a role akin to indentured servitude. The law, as it stands, permits employers to continue these inequitable actions and evade liability. H-1B visa holders are humans, too, and merit protections equivalent to those possessed by U.S. citizens and lawful permanent residents. This Note highlights this hidden yet extensive issue and argues for more robust protections through the law. While Title VII of the Civil Rights Act of 1964 operates as a federal mechanism to hold employers liable for discriminatory acts, it and other existing safeguards fail to adequately shield H-1B employees. To fix this broken system and provide justice for these abusive and pervasive practices, this Note contends that the Equal Employment Opportunity Commission, the enforcer of Title VII, should serve as the gap-filler and utilize its interpretative and administrative powers to keep employers accountable. This Note further articulates four proposed solutions the Equal Employment Opportunity Commission should employ to remedy these egregious harms, including bringing lawsuits in all cases it finds discrimination, amending its definition of national origin discrimination to encompass immigration status, revising its speak-English-only rules, and actively considering applying the equitable estoppel doctrine in untimely charges filed by H-1B visa holders

Take in Case of Emergency: Reconciling Necessity Takings with the Original Meaning of the Takings Clause

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that. Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social problems, ranging from climate change mitigation to expanded public restroom access. This Note attempts to ground necessity doctrine in the text and history of the Fifth Amendment’s Takings Clause through an originalist lens. The Takings Clause and necessity have a rich history, ripe for originalist analysis. After compiling and considering the relevant evidence, this Note argues the original meaning of the Fifth Amendment does not support a necessity exception to its compensation requirement. Instead, it argues that only in circumscribed circumstances does the state’s compensation obligation fail to attach when it destroys private property

Does It Take Four to Tango in the Regulatory Competition for Global Listings? Comparing Regulations on Dual Class Shares among Singapore, Hong Kong, Mainland China, and Taiwan

We provide a comparative analysis of regulatory competition among Singapore, Hong Kong, Mainland China, and Taiwan regarding the process, purpose, and actual results of deregulating Dual-Class Share (“DCS”) structure. The comparative analysis focuses on the role of regulatory competition in the convergence or divergence of DCS-structure regulations. To attract unicorn companies and China Concept Stock (“CCS”) companies to choose public offerings in regional exchanges, Hong Kong, Singapore, and Mainland China sequentially announced their amendments to listing rules, particularly in 2018, to allow public offerings of DCS-structure companies while considering their preference for the ownership structure of unicorns. We employ theories of regulatory competition and convergence to analyze the regulatory trajectories of the four jurisdictions in the Asia-Pacific region and how such jurisdictional competition would accelerate the transplantation of corporate governance regulations and, therefore, converge with the US permissive model in appearance. Hong Kong, Singapore, and Mainland China have transplanted the DCS-structure listing regulatory framework and added shareholder protection, particular disclosure, and sunset restrictions, which converge more in concert with each other towards the US model. We also discuss why and how stubborn path dependence would bring non-convergence towards the US model for listing companies in Taiwan, which is an outlier of the regulatory competition for global listings. By analyzing this competition by supplying DCS legal products among the four jurisdictions, we enrich the regulatory competition theory and study how this competition produces formal convergence and functional divergence of DCS structures in corporate governance regulations. We contribute to the existing literature by providing a comparative view of regulatory competition among the four jurisdictions and examining the potential impact of the US-China trade war on the deregulation of the DCS structure in the Asia-Pacific region