Immigration Law\u27s Missing Presumption

The presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article explores the relevance of a presumption of innocence to removal proceedings, arguing that immigration law has been designed and interpreted in ways that disrupt formulating any such presumption to facilitate deportation. The Article examines the meaning of “innocence” in the immigration context, revealing how historically racialized perceptions of guilt eroded the notion of innocence early on and connecting the missing presumption to persistent associations between people of color and guilt. By analyzing how a presumption of innocence is impeded at multiple decision points, from the investigations stage to detention, removal, and even post-conviction relief, the Article demonstrates the cumulative disadvantage that the system inflicts. Finally, the Article argues that immigration law not only is missing its own presumption of innocence but also erodes the presumption of innocence in criminal law. The Article offers three examples of this phenomenon involving immigration law’s treatment of pending charges, untested arrest reports, and unproven facts related to a crime. By shedding light on how immigration law undermines a presumption of innocence and reinforces racialized perceptions of guilt, this Article reveals a form of covert racial discrimination in the immigration code

Simplicity and Complexity in Law and in Markets

Richard Epstein’s Simple Rules for a Complex World is true to its title and to the author’s demonstrated genius over a long career. It is a libertarian-oriented enterprise in that it requires the reader to share in the belief that government programs are often wasteful and subject to unattractive interest group pressures and corrupt bureaucracies. More generally, Simple Rules is framed against a background in which the reader must share the libertarian view that individuals can and should be trusted to look after themselves and to make their own choices. Epstein likes “simple” rules; these include strict liability, a flat tax, fee simple, and so forth. He argues that more complexity invites errors and corruption, and arguments for complexity undervalue individuals’ ability to bargain and otherwise fend for themselves. People know what is good for them far more than lawmakers. Anyone who does not share these fundamental views might be frustrated when reading this important book, unless perhaps the belief in redistribution and market failures is so great that one is willing to set aside the enormous costs of government failure. In any event, an insightful and friendly (and terrific) critique of the book has already been written by John Harrison, who thinks of Epstein’s book as a myth: What role should law play if the world were as Epstein (and perhaps Harrison and others among us) wishes it to be? As such, this Essay is neither a review nor a reaction, but instead offers the following two ideas that are stimulated by the book

23-24 JPL 2Ls

https://scholarship.law.tamu.edu/property-law-slideshow/1030/thumbnail.jp

The Failure of Market Efficiency

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, friction, and transaction costs—we have lost sight of other, deeper values within our economic system, including wider conceptions of duty, fairness, and morality. And while regulators sometimes pay lip service to these values, they often treat them as merely a subset of efficiency: the best way to treat investors fairly, to promote equality, and to prevent immoral, exploitative behavior, in this view, is simply to create an efficient market. We have seen the consequences of this emphasis play out in spectacular fashion in the last decade. New market structures and technologies—from special purpose acquisition companies to social-media oriented trading apps to cryptocurrencies—have emerged to eliminate barriers to trade and compete with institutional incumbents. These strategies may well lead to more efficient markets insomuch as they facilitate access to capital, but they also have the side effect of placing unsophisticated individuals into complex contractual arrangements with sophisticated market actors. The result is an “efficient” market, but one with steep moral and social costs. This Article examines the limits of market efficiency as a regulatory goal and suggests a set of structural and substantive reforms aimed at better balancing efficiency with the other goals of markets. It concludes that regulators, courts, and scholars alike need to adopt a more comprehensive understanding of the proper ends of market regulation, one that emphasizes the purpose and spirit of finance over the false promise of efficiency

PDF Killed the Copier Star: Modernizing the Access to Sources of Proof Factor in a 28 U.S.C. § 1404(a) Transfer Analysis

With digital solutions to document storage, non-physical sources of evidence will become increasingly relevant for different types of legal actions. For patent proceedings, where evidence is often electronic, the need for a clearly defined approach to analyzing physical and electronic evidence has appeared within the first private factor of a 28 U.S.C. § 1404(a) transfer analysis. The evidentiary factor evaluating non-witness evidence—the access to sources of proof factor or first private factor—was interpreted by the Fifth Circuit when faced with weighing electronic evidence in favor, or against, potential transfer venues. Fifth Circuit precedent—relied upon in other circuit court opinions and the standard for when writs of mandamus reach the Federal Circuit—determined the access to proof factor is still relevant to modern transfer analyzes despite the ease of transfer some digital media provide. The convenience of digital evidence has led some district courts to request an amended approach for the first private factor analysis. In order to maintain the relevance of the access to sources of proof factor, the treatment of electronic evidence needs to be updated to reflect the expanding digital landscape. With a tailored approach recognizing the distinctions and ease of transfer for certain types of evidence, the tension between district court holdings, that the Gilbert factor is superfluous, and the circuit courts, holding that the factor is still relevant for transfer analysis, can be resolved. Sources of proof and the mediums they appear on will constantly change, and the law governing discretionary transfers should be prepared to adapt to those changes. This Comment seeks to provide a recommendation on how that can be achieved

Originalism: Erasing Women from the Body Politic

In Dobbs v. Jackson Women\u27s Health, the Court relied on originalism to excise women from the Constitution. Originalism is purposefully backward-looking. With cherry-picked history, the Court created a future that looks to the past: a past where unwed pregnancy is shameful and can be redeemed only by secret adoption. Yet the case has revealed originalism as a flawed method, harmed the legitimacy of the Court, and energized those supporting abortion rights

Discretionary Disfunction and Shivers v. United States: Consequences of Assuming the Intent of Congress

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act. This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for relief even though his Eighth Amendment rights were violated. This Note analyzes the error of that approach to constitutional claims and the discretionary function exception through the context of the Shivers decision and calls for an amendment to the exception clearly stating that violations of constitutional rights are not discretionary

GameStopped: How Robinhood’s GameStop Trading Halt Reveals the Complexities of Retail Investor Protection

Should brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop shares thus capping any further losses to Melvin Capital while at the same time capping potential further gains for the retail investors. Most of the retail investors were customers of one brokerage firm— Robinhood, Inc. for which Robinhood drew much criticism. Was Robinhood’s decision to restrict trading a result of some financially commingled allegiance to Melvin Capital or was it driven by some other reason? Moreover, is trading in the public equity markets “rigged” to favor the big hedge funds and institutional investors to the detriment of retail investors? With the use of technology, online trading platforms, and social media, public trading markets are evolving resulting in unprecedent occurrences. Is the current regulatory environment properly situated to maintain a “fair and orderly” public trading market? Do brokerage firms need to reexamine their operating protocols in relation to their retail investors? This Article adds to the discussion by exploring these questions

Establishing a Conditional Driver Permit in Texas

The article presents supporting data to expand access to state-issued driver permits for Texans who cannot provide the required documents to obtain a driver’s license. Part I examines the unlicensed and uninsured population in Texas that these efforts attempt to address. Part II discusses state jurisdiction to issue driver licenses and permits. It discusses existing Texas statutes that authorize the issuance of driver’s licenses and permits. The section also offers examples of other state statutes that have expanded their right to regulate driving privileges beyond Real ID Act requirements. Part III presents a partial economic analysis illustrating potential economic benefits from passing conditional driver permit legislation in Texas

My Body, My Choice: Should Physician-Assisted Suicide Be Legalized in the United States for Individuals with Chronic Mental Illness?

Many individuals with mental illness wish to die because the symptoms of their illness are unbearable. They shoot, suffocate, and poison themselves to make their pain go away. Because this is a statistical reality, a more certain and less violent means of death should be legalized. This Comment advocates for the legalization of physician-assisted suicide (“PAS”). As of 2022, nine states and the District of Columbia have legalized PAS for terminal illness, but this Comment argues that all fifty states should legalize PAS and not only for terminal illness, but for chronic mental illness as well. To do so, this Comment suggests minimum requirements legislators can adopt regarding which mental illnesses the PAS legislation should cover, how to assess competence to consent, and in what form that consent must be offered