In Padilla v. Kentucky, the United States Supreme Court imposed a Sixth Amendment mandate on criminal defense attorneys to warn their clients of the immigration consequences of a criminal plea. Rooted in Sixth Amendment precedent, the Court's new constitutional requirement arose principally out of its concern that the unique nature of immigration consequences required heightened due process protections. This Comment analyzes Padilla's specific impact on the concept of a right to appointed counsel in deportation proceedings. Although no deportation Gideon right existed before Padilla, signs indicate that the Court may be willing to revisit the issue. After explaining Padilla's relation to right to counsel jurisprudence, the Comment explores how the Court's newly heightened concerns over due process protections in immigration proceedings will affect its future analysis of the right as applied to the immigration context. This Comment concludes with an analysis of the manner in which the Court might come to recognize a categorical right to counsel in deportation proceedings.
Transnational Class Actions and the Illusory Search for Res Judicata
The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely an American court will include those foreigners in the U.S. class action.
Is It Really That Simple?: Circuits Split over Reasonable Suspicion Requirement for Visual Body-Cavity Searches of Arrestees
In Bell v. Wolfish, the United States Supreme Court upheld visual body-cavity strip searches on pretrial detainees but called for a balancing of privacy and security interests. For the three decades following Bell, courts routinely read in a reasonable suspicion requirement as part of that balance. That changed in 2008 when the United States Court of Appeals for the Eleventh Circuit held that the Fourth Amendment permits strip searches of all arrestees, regardless of whether there is any reasonable suspicion that an arrestee possesses contraband. In 2010, the United States Courts of Appeals for the Third and Ninth Circuits followed suit. In light of the recent split, the Supreme Court granted certiorari to determine whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense regardless of the circumstances. This Comment recounts the context of Bell, traces the courts' previously uniform interpretation of that decision, and explores this emerging debate, ultimately concluding that institution-specific security concerns could be a factor worthy of great weight in the Bell balancing equation.
False Efficiency and Missed Opportunities in Law and Economics
Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines
The Rome II Regulation: A Comparative Perspective on Federalizing Choice of Law
This Article analyzes the Rome II Regulation, which entered into effect on January 11, 2009, and established uniform choice-of-law rules for noncontractual obligations in the European Union. Rome II is of particular interest to U.S. scholars because its federal and international character and nearly comprehensive scope make it a potential model for a new U.S. Restatement or federal statute. Beginning with its text, context, and legislative history, this Article examines Rome II in the comparative light of state-level codifications in the United States and the general theory of state-interest analysis developed during the American “conflicts revolution.” The Article tests the new EU regulation against the facts of influential conflicts cases of the New York Court of Appeals and argues that it performs well by an interest-analysis standard. An assessment of Rome II as a model for a U.S. codification concludes the Article.
Saving Civil Justice: Judging Civil Justice By Hazel Glenn
Asking the right question can be as important as giving the right answer. In her book Judging Civil Justice, Dame Hazel Genn forcefully argues that the right question about the civil justice system is not “[h]ow much justice can we afford” but “how much justice can we afford to forego.”Genn has spent her professional lifetime studying methods for resolving civil disputes. A pioneer in empirical legal studies, she has for thirty years interviewed litigants, lawyers, and judges and studied courts, tribunals, and ADR methods. Genn is a clear-eyed observer, deeply sympathetic to the plight of modern courts but unwilling to ignore the politics that underlie the rhetoric of court reform today.. . .
Breathing Life into the Dead Zone: Can the Federal Common Law of Nuisance Be Used to Control Nonpoint Source Water Pollution?
This Comment posits the argument that the federal common law of nuisance could be used to control agricultural nonpoint source water pollution that causes the environmental problem known as the Gulf of Mexico “Dead Zone.” The primary obstacle to such a suit is that the United States Supreme Court, in two cases dealing with interstate water pollution from point sources, has held that the Clean Water Act entirely displaced the need for the federal common law of nuisance to abate interstate water pollution. However, the United States Court of Appeals for the Second Circuit's recent decision in Connecticut v. American Electric Power Co., a case dealing with the use of the federal common law of nuisance to control greenhouse gas emissions that contribute to climate change, has arguably refined the standard for federal displacement, requiring that the statute “actually regulate” the nuisance at issue. While the Clean Water Act actually regulates point source pollution, it fails to actually regulate nonpoint source pollution, thus leaving open the possibility that Louisiana or affected citizens could bring a claim under the federal common law of nuisance against states and agricultural industries that do not control the nonpoint source pollution that causes the Dead Zone.
Foolish Revenge or Shrewd Regulation? Financial-Industry Tax Law Reforms Proposed in the Wake of the Financial Crisis
This Comment evaluates four recent proposals to reform tax laws affecting the financial industry. After introducing the proposals, the author provides a theoretical framework for evaluating them and then relies on this framework to explore the benefits and drawbacks of each. Ultimately, the author rejects two proposals that call for imposing financial-transactions taxes and argues that lawmakers should instead focus on plans to either (1) permit cost-of-equity tax deductions or (2) tax the debt held by major financial institutions.
The Qur'an and the Constitution
And this Qur'an is not such as could ever be devised by anyone save God; it is a confirmation of what was [revealed] before and an exposition of Divine Text— Therein is no doubt—from the Sustainer of the Worlds. Many have noted the sacredness surrounding the U.S. Constitution, and comparisons with the Bible are often made.