Legal Spirits 058: Law & Justice in Shakespeare’s “Measure for Measure”

First performed 400 years ago, William Shakespeare’s “Measure for Measure” addresses an enduring human dilemma. No society can safely exist without law, but law itself depends on human judgment, which is prone to error and corruption. In this episode, Center Director Mark Movsesian and Northwestern Law Professor John McGinnis discuss this great but problematic play and explore why it remains so humbling for lawyers and judges today. Listen in

Lethal Immigration Enforcement

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures courts routinely order people deported to their deaths. As these preventable deaths persist, particularly among migrants of color, the Supreme Court has all but foreclosed causes of action against individual federal agents for wrongful death. It has done so most notably in its recent 2022 decision Egbert v. Boule, further limiting judicial remedies for constitutional violations and sanctioning use of force as a routine function of immigration enforcement. This Article provides a novel perspective on law enforcement and race. It is the first to provide a comprehensive examination of lethal immigration enforcement, arguing that racialized policy rationales, impunity instituted by courts, and prevailing political paradigms have coalesced to render migrants of color expendable. Therefore, the enforcement system must be reimagined. While scholars have begun to analyze the immigration system in terms of “slow death,” or harms that occur over time, a holistic view of “spectacular deaths,” those readily perceived, is lacking. After mapping how the immigration enforcement system takes migrant lives, this Article interrogates the policy rationales for lethal enforcement in light of largely unexamined data, finding that anti-Blackness drives punitive immigration detention and the perceived dangerousness of Latinx migrants fuels lethal border policies. It then turns to an analysis of wrongful death actions and recent Supreme Court doctrine, poised to impede remedies for excessive force in courts further and escalate racialized violence against noncitizens. Ultimately, given the urgency of addressing rising migrant mortality, it calls for a paradigm shift beyond liberal reforms to end lethal enforcement and its racial subordination

Legal Spirits 057: Historian Richard Brookhiser on Religious Freedom in America

In this episode, Center Director Mark Movsesian interviews historian Richard Brookhiser about his new documentary, “Free Exercise: America’s Story of Religious Liberty.” How have minority religions tested and shaped America’s commitment to religious freedom over the centuries–and how has America changed those religions in return? From the Flushing Remonstrance of 1657 until now, it has been a grand story. Listen in

Anti-Racism Day 2024 - Access, Challenges, and Solutions

Keynote address by James Forman, Jr., J. Skelly Wright Professor, Yale Law School, Faculty Director, Yale Law and Racial Justice Cente

Legal Spirits 059: Daniel McCarthy on “the Other Nones”

In this episode, Center Director Mark Movsesian interviews journalist Daniel McCarthy on his recent essay in Modern Age, “The Other Nones.” Dan argues that the decline of traditional Christianity in the West hasn’t led to the age of rationalism and progress that many secularists predicted, but instead to an age of entropy, in which people have lost faith in unifying narratives of all kinds, political and ideological as well as religious. Can we restore some idea of the common good? Listen in

Legal Spirits 056: Can the NY State Thruway Ban Chick-fil-A?

In this episode, we discuss a bill pending in New York that would require future fast food restaurants at rest stops on the State Thruway to open seven days a week. The bill expressly targets Chick-fil-A, which closes on Sundays in line with the owners’ religious commitments. Does the bill violate Chick-fil-A’s free exercise rights under the US and NY State Constitutions? And what does this controversy suggest about religious practice in the US? Listen in

The Empty Promise of the Fourth Amendment in the Family Regulation System

Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches—required elements of investigations into allegations of child maltreatment in virtually every jurisdiction—state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth Amendment’s warrant requirement applies to family regulation home searches. But almost universally, the abstract recognition of Fourth Amendment protections runs up against a concrete expectation on the ground that state actors should have easy and expansive access to families’ homes. Legislatures mandate searches and loosen warrant requirements; executive agencies coerce consent from families and seek court orders that violate the Fourth Amendment; and the judiciary rubberstamps these efforts and fails to hold the executive and the legislative branches to their constitutional obligations. Families under investigation—who are almost all poor and are disproportionately Black, Latinx, and Native—are left with nowhere to retreat. This Article argues that the casual home invasions of the family regulation system are not just another story of lawless state action carried out by rogue actors or of an adversarial system failing to function. Instead, this is a story of a problem-solving system functioning exactly as it was designed. The problem-solving model emphasizes informality, information-gathering, and cooperation—values that sit uncomfortably with the individual rights-based principles underlying the Fourth Amendment. By uniting each branch of government in a project of surveillance, the problem-solving model reduces the potency of the separation of powers as a check on government overreach, while at the same time undercutting checks and balances outside the separation of powers. Protecting individual rights and preventing government overreach in the family regulation system will require more than rejecting the problem-solving model in favor of an adversarial model, as the criminal legal system shows. Guided by the heuristic of non-reformist reforms, the Article suggests a continuum of measures—some immediate, some over the course of generations—that will unravel the family regulation system’s wide net of surveillance and safeguard the welfare of children in a holistic sense. Ultimately, we must fundamentally rethink “child welfare services” and move from a model that holds individuals responsible for large-scale societal problems to one that addresses those problems on a societal level

A Better Way: Uncoupling the Right to Counsel with the Threat of Deportation for Unaccompanied Immigrant Children and Beyond

(Excerpt) The stakes could not be higher in immigration court—families are separated; people are banished from their communities with little hope of ever legally returning; judges relegate individuals to seemingly arbitrary and indefinite detention in remote locations. Each of these hardships—and more—flow from the threat of deportation. As the Supreme Court noted in 1922, deportation “may result . . . in . . . all that makes life worth living.” As has been the unfortunate norm in civil proceedings, many individuals face these trials without an attorney by their side because while the law states that respondents in immigration court have the right to be represented by an attorney, attorneys will not be provided at the expense of the government in all but a few, narrow circumstances. Thus, individuals with little legal experience and who may not be fluent in English will find themselves facing experienced attorneys from the federal government—and all of this occurs before immigration judges who, more often than not, are predisposed not to recognize the humanity of respondents or take seriously the hardships that their decisions may impose. In terms of complexity, immigration law is often said to be second only to tax law. Even seasoned professionals regularly encounter issues they have not seen before—and on top of that, immigration professionals must navigate the consistently changing administrative landscape and accede to the whims of the Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”), which can change procedures and case law at will in ways that have a significant impact on immigration law practice. Thus, it is unsurprising that attorneys and advocates who have seen the monumental power imbalance between unrepresented respondents and government attorneys play out in court to have pushed for policies advocating for universal representation in immigration court proceedings. The reasoning makes sense—given these circumstances, it is highly unlikely that an unrepresented respondent will win a favorable outcome in immigration court, therefore, to have a chance at achieving justice, all respondents should have access to free legal counsel in their removal proceedings. Many argue that this is what due process requires—others argue that it is just the right thing to do for our immigrant neighbors, friends, and family—even if it is not compelled by due process. While I agree that every person in removal proceedings should have access to free legal representation, I propose that there are several major issues with the traditional advocacy pushes for universal representation in removal proceedings. First, I believe the traditional approach to universal representation in immigration court is much too narrow in terms of the legal help that should be afforded to immigrants. Second, I believe it is based on the false premise that justice is generally achievable in immigration court only if one has an attorney

An Unincorporated Entity will be Unable to Recover as a Secured Creditor in Bankruptcy Unless a Court Invokes the Doctrines of De Facto Corporation or Corporation by Estoppel

(Excerpt) Under New York law, an entity that has failed to properly incorporate cannot assume liabilities or acquire rights. As a result, unincorporated entities will typically lack capacity to enter into contractual agreements. Within the context of bankruptcy, this may hinder a creditor’s ability to maximize its recovery. A creditor that is adversely affected by a lack of corporate recognition will attempt to persuade a court to impose the doctrines of de facto corporation or corporation by estoppel. These doctrines, which are matters of state law, provide unincorporated entities with the rights and obligations that a legally recognized entity would otherwise have. This article discusses the doctrines of de facto corporation and corporation by estoppel and their bankruptcy implications. Part I compares the two doctrines and analyzes the criteria courts use to determine whether an unincorporated entity should be found to have corporate status. Part II further elaborates on the bankruptcy implications associated with the corporate status of unincorporated entities

Two Valid Approaches for Determining Whether “Taxes” Get Priority in Bankruptcy Cases

(Excerpt) In bankruptcies, tax status often effects whether claims are entitled to priority. Thus, debates about whether charges are penalties or taxes date back to the early twentieth century. In 1930, the Supreme Court established that courts are not bound to the characterization given to a charge by the municipality that created it. Rather, courts have a duty to consider the “real nature” and “effect” of the charge. Accordingly, different circuits have implemented different approaches to make these determinations. This Article examines the ambiguity among circuits regarding charges’ “tax” status and resulting priority entitlement. Part I outlines In re Lorber’s multi-factor test in the Ninth Circuit. Part II outlines In re Peete’s functional examination test in the Seventh Circuit. Part III examines the tests’ similarities and differences. The Article concludes by contextualizing the concurrent validity of both approaches