Scholarship with Purpose: The View from a Mission-Driven School

This essay explores the ways that a law school’s unique culture impacts the role of the Associate Dean for Scholarship. Written by the first person to hold this position at Vermont Law School (VLS), this essay focuses specifically on how the Associate Dean for Scholarship supports VLS’s commitment “to developing a generation of leaders who use the power of the law to make a difference in our communities and the world.” This vision of the role, as implemented at VLS, includes: providing support to all faculty, regardless of status; supporting faculty who speak to broad audiences; and embracing a broad definition of the role that includes writing and teaching support. At VLS, engaging in meaningful scholarship is a critical component of faculty work because it makes faculty better teachers, better citizens in the world, and illustrates, for students, how to use the law to impact the world in positive ways. At a time when there may be criticism of faculty time spent on scholarship and calls to remove the system of tenure, VLS embraces scholarship, broadly defined, as part of our critical role

Undocumented Workers and Concepts of Fault: Are Courts Engaged in Legitimate Decisionmaking

This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon “fault-based” factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized by courts. Though concepts of fault are not uncommon in law, when evaluating these cases courts tend to examine immigration-related fault as opposed to fault stemming from the underlying workplace claim. Using the taxonomy rooted in the Supreme Court’s 2002 Hoffman decision, courts employ two constructs in cases involving undocumented workers: past fault as it relates to unlawful immigration, continued unlawful presence in the country or fraud to obtain work; and future fault as it relates to the potential for prospective illegal acts. This Article explores whether courts’ use of these fault concepts provide legitimate bases upon which to make decisions and concludes that decisional legitimacy depends on the fault-based modality used by the court. Future “fault-based” decisionmaking effectuates legislative intent in a manner sufficient to satisfy separation of powers principles. Past “fault-based” decisions, unrooted in existing legal doctrine, constitute unchecked judicial policymaking that may violate separation of powers principles. In the middle are past fault-based decisions that are rooted in existing doctrine but are inappropriately applied in the undocumented worker context because of the insufficient nexus between the immigration wrong and the injury. The Article concludes that the attempt to effectuate immigration policy through the application of immigration fault into labor and employment cases can be an impermissible exercise of judicial authority

Principles of Non-Arbitrariness: Lawlessness in the Administration of Welfare

This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach those ends. Second, clear standards must exist so that individuals are able to conform their conduct according to a predictable system. Third, the rules and standards that do exist must be equally and fairly applied. And finally, the government must be accountable, and courts must be able to review governmental action to determine its legality. The article’s primary goal is to demonstrate that the concept of non-arbitrariness is foundational to American law and has some relevance for a welfare program that is administered without rules or standards. Specifically, the concept of non-arbitrariness and the requirement of rules and standards that are fairly and equitably applied create a necessary foundation from which other rights may flow. Courts may not move toward a broad prohibition against arbitrary action affecting welfare recipients any time soon, but they may be willing to regulate certain governmental action or inaction through concepts of non-arbitrariness. Ultimately, the article concludes that a welfare program being administered at the local level without any rules, regulations, policies or procedures is an instance where courts should be willing to regulate governmental arbitrariness. The appropriate remedy would be one that traditional constitutional procedural due process and administrative law remedies have not clearly provided - namely, a requirement that governments have rational rules and standards that are applied fairly and equitably

Undocumented Workers and Concepts of Fault: Are Courts Engaged in Legitimate Decisionmaking?

This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon fault-based factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized by courts. Though concepts of fault are not uncommon in law, when evaluating these cases courts tend to examine immigration-related fault as opposed to fault stemming from the underlying workplace claim. Using the taxonomy rooted in the Supreme Court\u27s 2002 Hoffman decision, courts employ two constructs in cases involving undocumented workers: past fault as it relates to unlawful immigration, continued unlawful presence in the country or fraud to obtain work; and future fault as it relates to the potential for prospective illegal acts. This Article explores whether courts\u27 use of these fault concepts provide legitimate bases upon which to make decisions and concludes that decisional legitimacy depends on the fault-based modality used by the court. Future fault-based decisionmaking effectuates legislative intent in a manner sufficient to satisfy separation of powers principles. Past fault-based decisions, unrooted in existing legal doctrine, constitute unchecked judicial policymaking that may violate separation of powers principles. In the middle are past fault-based decisions that are rooted in existing doctrine but are inappropriately applied in the undocumented worker context because of the insufficient nexus between the immigration wrong and the injury. The Article concludes that the attempt to effectuate immigration policy through the application of immigration fault into labor and employment cases can be an impermissible exercise of judicial authority

Designing Interdisciplinary, Early Intervention Dispute Resolution Tools to Decrease Evictions and Increase Housing Stability

This Article provides a unique glimpse into the development of an early-intervention, pre-court, interdisciplinary dispute resolution project intended to decrease evictions and increase housing stability for recipients of subsidized housing in Seattle. With a grant from the Seattle Housing Authority (SHA), a coalition of non-profit organizations had the rare opportunity to design a dispute resolution system into existence. A dispute system design team was formed and began by examining the interconnected problems of housing instability, eviction, and houselessness. Despite thorough research on dispute system design and extensive meetings with stakeholders, the deign team encountered numerous challenges. This Article identifies the design challenges specific to this project, as well as the larger systemic issue of actual fairness underlying all dispute resolution tools. Mindful of these issues, the design team created a program titled Conflict Resolution Services (CRS). CRS is rooted in six key components: consistent outreach and ongoing education; rapid response de-escalation; integration of social services support; proximity to the conflict; development of an interdisciplinary, multicultural team; and research and assessment to create an iterative process of continuous re-design. After providing a brief overview of the preliminary qualitative and quantitative research design component of CRS, the essay concludes by explicating and contextualizing three key insights derived from the dispute system design process. First, take the time needed to engage in a thoughtful and holistic design process. Second, despite inherent challenges, engage, collaborate and rely on the expertise of other organizations. Finally, recognize and acknowledge systemic issues facing all dispute resolution systems such as power imbalance, inequality, racism, and implicit bias and seek creative solutions to overcome challenges

Welfare Entitlements in the Era of Devolution

In 1996, the Republican Congress and Democratic President enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), ushering in a new era of public benefits. This 1996 act’s fundamental change to the administration and substance of public benefits called into question the applicability of a substantial body of procedural due process doctrine. As a result, unanswered questions remain regarding the applicability of established due process doctrine in the welfare reform context. This Article analyzes whether public law entitlements exist in the context of PRWORA’s first order devolution from the federal to state governments as well as some states’ second order devolution from state to county or local governments. This article suggests that the statutory “no entitlement” declaration does not determine whether recipients retain constitutional procedural due process protections. Instead, utilizing a public law analysis, the article posits that PRWORA creates legitimate expectations to the receipt of benefits through statutory language and the concept and nature of the contractual agreements entered into between recipients and governments. Ultimately, these agreements form the basis of legitimate expectations in recipients and, therefore, a property interest. Using the example of one state’s devolution from the state to the county or local government, the articles explores the dangers that accompany unchecked agency discretion and highlights the continued, and arguably heightened, importance of procedural due process protections. The Article concludes that whether one focuses on the meanings of property interests, entitlements and/or legitimate expectations, or applies a fundamental requirement that government adhere to the rule of law, states remain accountable to welfare recipients when states offer benefits with conditions that impact the lives of their most impoverished residents

Ask, Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation

The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status. This article explores lawyers\u27 increasingly complex ethical obligations with regard to a client\u27s immigration status in the context of employment litigation. The complexity regarding the nature and scope of a lawyer\u27s obligation is due, in large part, to two recent developments. The first is the United States Supreme Court\u27s 2002 decision in Hoffman Plastic Compounds v. National Labor Relations Board, in which the Court addressed the scope of lawful relief due to an injured undocumented worker and ultimately left open the question of relevancy of immigration status in general civil litigation. The second factor creating this complexity relates to existing legislation that criminalizes various acts by undocumented immigrants as well as the ongoing legislative debates regarding immigration reform which have included proposals to criminalize the mere status of undocumented immigrants. This article addresses both of these developments in the context of lawyers\u27 ethical obligations and analyzes several questions. First, in light of ethical prohibitions on lawyers assisting in conduct that is criminal or fraudulent, are there any ethical limitations upon a lawyer\u27s ability to represent undocumented workers in employment litigation? Second, once representing an undocumented worker, how do lawyers balance their duty of confidentiality against disclosure obligations? And, finally, despite this article\u27s conclusion that the ethical rules do not mandate disclosure of a client\u27s immigration status, this article explores the strategy of disclosure and whether the decision to disclose belongs to the lawyer or the client. In light of the potentially catastrophic consequences of an improperly made disclosure, lawyers need to be mindful of the special ethical obligations that arise when representing undocumented workers in employment related civil litigation. The article proposes a framework and analysis to guide lawyers through these difficult ethical quandaries

Kathleen A. Sullivan: A True Teacher\u27s Teacher

This essay is part of a group of five memorial tributes to Professor Kathleen A. Sullivan of the Yale Law School. The group of tributes reflect on the numerous contributions Professor Sullivan made to her colleagues, students, clients and the clinical education community. In this memoriam tribute, the authors explore three themes that Professor Sullivan cared deeply about: thinking critically about confidentiality, privacy and autonomy; incorporating issues of difference into our teaching and practices; and encouraging people (students, clients and colleagues) to find and assert their own voices, even – and especially – when those voices are different than ours