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

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    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

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    (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

    In Memoriam

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    (Excerpt) The editors of the St. John’s Law Review respectfully dedicate this issue to Professor Olivas

    High Anxiety: Racism, the Law, and Legal Education

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    Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled - the public shaming for remarks that are deemed racist - has had a chilling effect on having meaningful conversations about racism. What lost opportunities! This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping the law while still respecting community members’ different perspectives about racism pedagogy? As in our broader society, law school community members’ fear of “getting it wrong” and possibly being cancelled has had a chilling effect on having candid conversations about racism within legal education and the law. In this discussion, the author prescribes one of the first dispute system frameworks for implementing pedagogy on racism in law school, highlighting the different racial stressors ignited in doctrinal, clinical, skills, and experiential learning classes. The dispute resolution system is built on a restorative justice framework and draws on an interdisciplinary understanding of the physiology and psychology of racial stressors. Building on that knowledge, the paper explains how racial stressors, if constructively addressed, can actually enhance learning about racism and better prepare law students for real-world practice

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

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    (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

    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

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    (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

    One Test to Rule Them All: Retiring the Dual Standard for Fictional Character Copyrightability in the Ninth Circuit

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    (Excerpt) From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value in asserting ownership over fictional characters. Since characters, like stories, are products of ideas, they are considered intangible property and are thus governed by intellectual property law, specifically copyright. Given the potential for financial gain, there has been much dispute over the copyrightability of fictional characters. While it is relatively straightforward to assert ownership over a film, television show, or novel under copyright law, it is more difficult to assert ownership over a character. Various circuit courts have taken different approaches to defining the scope of copyright protection for fictional characters. For example, the Ninth and Second Circuits, two of the most influential circuits for copyright law, employ slightly different approaches

    When Deciding Whether to Transfer Venue, Bankruptcy Courts will Consider Their Discretion to Retain a Case, as well as the Interests of Justice and Convenience of the Parties

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    (Excerpt) When a debtor decides to file a petition for bankruptcy, one decision to make is in what court, or what jurisdiction to file. However, the debtor’s choice of where to file is not always indisputable. Once a case is filed in a particular court, any “party in interest” may bring a motion seeking to change the venue of the case to an alternate court. Additionally, a court, on its own motion, may transfer a case to an alternate venue. The three statutory provisions that govern transfers of venue are Bankruptcy Rule 1014 (“Rule 1014”), 28 U.S.C. § 1408 (“Section 1408”), and 28 U.S.C. § 1412 (the substantive equivalent of Rule 1014). This article primarily discusses Rule 1014, however, it is important to note that Section 1408 provides the criteria for what constitutes proper venue. These considerations include the debtors’ and creditors’ domicile, residence, principal place of business, and principal assets. However, the statutory interpretation of Rule 1014(a)(2) is what will be focused on in this article. Rule 1014(a)(2) states in pertinent part, “[i]f a petition is filed in an improper district, the court, on timely motion of a party in interest or on its own motion . . . may dismiss the case or transfer it to any other district if the court determines that transfer is in the interest of justice or convenience of the parties.” The language of this provision poses two issues: (1) What discretion does a bankruptcy court have to retain a case filed in an improper venue; and (2) what constitutes in the interest of justice and convenience to the parties? The majority of courts have held that a bankruptcy court does not have discretion to retain jurisdiction over an improperly venued case upon a timely-filed objection. Furthermore, when determining what constitutes the interest of justice and convenience of the parties under Rule 1014, courts will consider several practical and equitable factors. This article explores how courts have interpreted Rule 1014 in a twofold approach. Part I discusses whether a court has the discretion to retain a case even if it was filed in the improper venue. Part II examines what constitutes “in the interest of justice and convenience of the parties” under Rule 1014

    A Business Doing Pleasure: Combating Sex Trafficking by Decriminalizing Sex Work

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    (Excerpt) On the night police officers pounded on Yang Song’s door, she ran to the balcony of her fourth-floor apartment, which overlooks 40th Road in Flushing, Queens. Four years earlier, she had arrived at John F. Kennedy Airport with a dream of opening a restaurant. After a waitressing job failed, as well as a short-lived Chinese fast-food venture, she took a massage therapy course. There, she learned about a “lucrative opportunity” on 40th Road. Flushing’s underground sex economy has been notorious for years. In fact, massage parlor arrests across the United States consistently lead back to addresses in Flushing. Because massage parlors in Flushing disappear and reappear regularly, and there is confusion about which ones are licensed, the NYPD’s attempts to crack down on these businesses have been largely unsuccessful. But that does not stop them from trying. On the night that police officers pounded on her door, Yang Song had already circled through New York’s Human Trafficking Intervention Courts (HTICs) multiple times. The HTICs seek to provide sex workers and trafficking victims with a way out of the sex trade by mandating services such as therapy in lieu of jail time. In fact, Yang Song’s fifth court-mandated session with Restore NYC, a nonprofit organization that helps foreign-born victims of sex trafficking, was just four days away. Months earlier, Yang Song disclosed to her lawyer that a police officer had put a gun to her head and forced her to perform oral sex. Whether any of this went through Yang Song’s mind on the night the police pounded on her door is unknown. And whether Yang Song jumped, fell, or was pushed from the balcony when her body plunged four stories down to 40th Road is also unknown. She died the next morning. Was Yang Song “trafficked” into her massage parlor position, or was she there voluntarily? This is also a question without a clear answer. The concept of sex trafficking captures the imaginations of Americans, but questions of who qualifies as a victim and who does not have many answers—and the answers depend upon a number of circumstances, including whom you ask

    Hats for Sale: Efficiency, Economics, and Process Integrity

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    (Excerpt) What are the ethical considerations for a mediator when a neutral is asked to be both the mediator and arbitrator on the same case? Some parties and their lawyers opt to select one neutral to serve as both the mediator and arbitrator on the same case, believing it will be a more efficient and cost-effective way to resolve their dispute. After all, the mediator already knows the facts of the case. Why waste time and money getting another neutral up to speed? This design choice, however, may collide with the mediator ethical mandates of party self-determination, neutral impartiality, confidentiality, and process integrity, and compromise the benefits of mediation. What makes this neutral selection even more challenging is that there is no consensus about the best way to ethically proceed. This column highlights these issues


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