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  • Federal Employer Sanctions as Immigration Federalism

    For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal immigration thus accomplishes what legal immigration does not: It moves large numbers of low-skilled workers from a low-productivity to a high-productivity environment." Recognizing that job opportunities are a significant motivating factor in the decision to come to the United States, President Reagan signed the Immigration Reform and Control Act (IRCA) in 1986, the "centerpiece" of which was the country's first comprehensive federal employer sanctions law. "Conditioning U.S. jobs on proof of [work] authorization, so the logic went, would deter immigrants from coming to the United States for work reasons, encourage those that were here without meaningful job opportunities to return home, and over the long term reduce the rate of unauthorized migration." The Senate report for a version of the bill that became IRCA suggested that, while Third World development, closing the gap in wage disparity and working conditions, and the achievement of higher standards of living in sending countries were longterm goals that would help curb illegal immigration, the short-term cure was to eliminate the availability of the jobs that serve as a magnet. Prohibiting the hiring of unauthorized workers would be the most immediate way to cause meaningful change in the amount of unlawful migration to the United States. This Note explores the ways in which the failings of the current system of employer sanctions should render employer sanctions invalid for the same reasons that underlie preemption of state and local immigration enforcement laws. Because sanctions are intended to have a direct impact on inmiigration and require individual, private employers to enforce immigration law (without training!) as screeners of employees' eligibility and immigration status, IPCA's employer sanctions scheme results in an uneven and inconsistent application of what is meant to be a comprehensive federal scheme of immigration law. Moreover, if proposals to ramp up employer sanctions are successful, the potential for workplace discrinination will increase because employers, having access to only inadequate means of verifying work authorization, will face dueling liabilities under antidiscrimination and immigration law.

  • Sliding Towards Educational Outcomes: A New Remedy for High-Stakes Education Lawsuits in a Post-NCLB World

    Sheff v. O'Neill ushered in a new wave of education reform litigation that may challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Note proposes a new desegregation remedy-the sliding scale remedy-to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate right, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.

  • The Legal Arizona Workers Act and Preemption Doctrine

    in recent years, a spate of states passed laws regulating the employment of undocumented immigrants. This Note argues that laws that impose civil sanctions on employers that hire undocumented immigrants are preempted by both federal immigration law and federal labor law. The Note focuses specifically on the Legal Arizona Workers Act because it went into effect in 2008 and has amassed more than two years' worth of data on its enforcement, and because it is touted as the harshest state anti-immigration measure to date. This Note examines the law's impacts and argues that practitioners nationwide should challenge the Legal Arizona Workers' Act, as well as the proliferation of similar state laws that threaten civil rights, business and labor interests, and the supremacy of the federal Constitution.

  • Wartime Prejudice Against Persons of Italian Descent: Does the Civil Liberties Act of 1988 Violate Equal Protection?

    Most people know that the United States interned persons of Japanese descent during World War II. Few people know, however, that the government interned persons of German and Italian descent as well. In fact, the internment was part of a larger national security program, in which the government classified non-citizens of all three ethnicities as "enemy aliens" and subjected then to numerous restrictions, including arrest, internment, expulsion from certain areas, curfews, identification cards, loss of employment, and restrictions on travel and property. Four decades after the war, Congress decided to compensate persons of Japanese descent who had been "deprived of liberty or property" by these restrictions. Congress has not, however, redressed the harm done to persons of German or Italian descent. This Note explores why Congress decided to distinguish between victims of Japanese and Italian descent, why the D.C. Circuit held that the distinction does not violate equal protection, and the potential impact of new historical evidence on both conclusions.

  • The Unconstitutionality, Ineffectiveness, and Alternatives of Gang Injunctions

    Gang violence across America puts in jeopardy the peace and tranquility of neighborhoods. Cities are challenged to keep their communities safe from gang violence. One common way in which cities attempt to combat violent gang activity is by using gang injunctions. Gang injunctions are court orders that prohibit gang members from conducting already-illegal activities such as vandalism, loitering, and use or possession of illegal drugs or weapons within a defined area. These injunctions, however, also prohibit otherwise legal activity such as associating with others within the restricted area of the injunction, using words or hand gestures, and wearing certain clothing. The increased use of gang injunctions to combat violent gang activity is a controversial tactic. The use of gang injunctions raises many constitutional concerns, including violations of the 1st, 4th, 5th, 9th, and 14th amendments. Even if interpreted as constitutional, gang injunctions have been proven ineffective in preventing and deterring gang members from engaging in violent gang activity. Critics believe that gang injunctions create gang cohesiveness, animosity towards the police, and relocate the violent crime created by gang members by pushing gang members into adjacent neighborhoods just outside the injunction's target area. Finally, there are several proven-effective alternatives to gang injunctions. This Note explores the unconstitutionality of gang injunctions, reveals the ineffectiveness of gang injunctions, and investigates more effective and efficient alternatives.

  • Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act

    Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, disparate impact on racial minorities by denying such individuals the benefits of housing in violation of the federal Fair Housing Act, 42 U.S.C. § 3600, et. seq. The author compares existing enforcement guidance under Title VII employment discrimination law and suggests solutions for balancing the concerns of private housing providers and strong policy reasons behind increasing access to private housing for individuals with criminal records.

  • Permitting Under the Clean Air Act: How Current Standards Impose Obstacles to Achieving Environmental Justice

    Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to provide any remedy for these communities. Rather than starting at the bottom and focusing on the negative effects that occur under the current system, this Note argues that a different approach should be adopted. Under this new approach the analysis begins by examining the cause of the problems-the statutes and regulations established by Congress and implemented by federal and state agencies. In particular, the Note focuses on how the current framework of technology-based permitting provides facilities with the legal ability to continue emitting dangerous levels of pollution that disproportionately harm environmental justice communities. The Note uses a case study from Michigan to illustrate the problems with the current permitting system. It concludes with suggested changes that could be implemented by states, or at the federal level, to provide adequate protections for environmental justice communities so that the environmental justice movement has a better chance of achieving its goals.

  • The Abolition of the Death Penalty in New Jersey and Its Impact on Our Nation’s “Evolving Standards of Decency”

    In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. The Note further hypothesizes that this lack of executions created the policy space for legislative abolition. The Note then explores the effect that New Jersey's abolition might have on capital punishment in other states, as well as the potential influence of state-level abolition on the United States Supreme Court's evaluation of the constitutionality of the death penalty.

  • In Defense of the Indian Child Welfare Act In Aggravated Circumstances

    The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused his three Native children. In 2005, the South Dakota Supreme Court addressed the same issue, but expressly refused to engraft such an exception into the ICWA. This Note defends South Dakota's position on policy grounds. It chiefly argues that an aggravated circumstances exception would do violence to the ICWA and its family preservation goals, and further that such an exception is unnecessary to protect Native children from dangerous parents.

  • Education and Labor Relations: Asian Americans and Blacks as Pawns in the Furtherance of White Hegemony

    Asian Americans and Blacks have been, and continue to be, racialized relative to each other in our society. Asian Americans and Blacks have come to occupy marginalized positions as the polarized ends on the economic spectrums of education and labor relations, with an expanding "Whiteness" as the filler in the middle as Whites manipulate the differing interests of both subordinated groups to align with White (the dominant group's) interests. Although Whites purport to champion the interests of one subordinate group over the other, in reality the racialization of Asian Americans and Blacks in our country is rooted in the preservation of White hegemony; this racialization is harmful to both subordinate groups and serves to reinforce White hegemony by exploiting areas of White privilege and domination, particularly in the context of education and labor relations. However, many mainstream theories and historical attempts to characterize the racialization of Asian Americans and Blacks (the theory of a monolithic form of racism that just happens to result in differing effects on Asian Americans and Blacks, the theory of a Black- White binary, the racial triangulation of Asian Americans against Whites and Blacks, and the "model minority" myth) fail to fully describe and capture the different positions within a multidimensional social hierarchy that Asian Americans and Blacks occupy. Therefore, we must look beyond these theories in order to fully understand race relations and the position of Asian Americans and Blacks in our society.