- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
During the last ten years, the United States has tightened deportation standards. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which together significantly altered existing immigration law. These laws broadened the scope of the federal government’s power to deport aliens and reduced the rights of aliens who sought to remain in the country.
United States federal courts differ in their application of certain provisions of these new immigration and deportation laws. One provision of the IIRIRA that the circuit courts interpret differently is 8 U.S.C. § 1252(b)(3)(B), which governs the ability of aliens to remain in the United States pending their appeals of final deportation orders. Courts in the Eleventh Circuit have held that courts may grant stays of removal to aliens awaiting appeals from final deportation orders only if an alien is able to prove, by clear and convincing evidence, that the Board of Immigration Appeals (BIA) misapplied the law under which they are to be deported. In contrast, courts in the First Circuit have held that immigrants awaiting appeals from final deportation orders need only satisfy the preliminary injunction standard to have their removal stayed temporarily. The preliminary injunction standard requires a lesser showing of proof than the clear and convincing standard, and allows a judge to consider how deportation would affect the alien. Despite these inconsistent applications, the Supreme Court has yet to decide on the correct interpretation of the statute. . . .
The United States has long toed the line between enforcing its immigration laws and importing the requisite amount of foreign labor needed to keep its economy running. The immigration balancing act took center stage following the terrorist attacks of September 11, 2001, as much of the country demanded the government hole up its borders and expel illegal residents. While the public outcry focused primarily on ridding the nation of terrorists, factions of the private sector had economic reasons for demanding a crackdown. Generally, companies employing illegal aliens can minimize operating costs and underbid competitors that hire only legally documented workers. Higher labor costs handicap employers who play by the rules. Large scale employment of illegal aliens also drives down the average wages of legally documented employees. Until recently, employers and employees seeking redress have been limited in their legal options. Courts have held that both companies and employees lack standing and direct injury, preferring the government, rather than the private sector, to enforce its immigration laws. As a result, injured parties must air their concerns to the federal government and hope that eventually their grievances are taken seriously. . . .
The First Amendment of the United States Constitution expressly states that ”Congress shall make no law . . . abridging the freedom of speech.” Due to concern over limiting the free expression of thought, courts generally construe the First Amendment to preclude the government from regulating speech based upon subject matter. The United States Supreme Court, however, has permitted content-based restrictions on a limited basis where the speech is of minimal social value. In Ashcroft v. ACLU, the Supreme Court considered whether the Third Circuit Court of Appeals correctly affirmed an order granting a preliminary injunction against the enforcement of the Child Online Protection Act (COPA). The Court upheld the preliminary injunction, and concluded that the district court did not abuse its discretion in holding that the government failed to prove the absence of less restrictive alternatives. . . .
On May 31, 2002, Henry Trudeau fatally stabbed Karen Trudeau, his wife of seventeen years and the mother of his two children. Henry then committed suicide. Upon learning Karen’s fate, citizens from Blandford and other surrounding Massachusetts communities expressed disbelief and outrage. They directed their anger not only at Henry, but also at local law enforcement agencies for failing to do more to protect Karen. They knew that Karen ”did what she could. After her husband punched her, destroyed her belongings and threatened her, [she] got a restraining order. And when Henry Trudeau repeatedly violated it, she filed five criminal complaints” . . . .
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to “effective assistance” of counsel. In applying effective assistance principles to capital sentencing proceedings, the Court has established that a defendant must prove his counsels performance was deficient and thereby prejudiced his defense to show a Sixth Amendment violation. In Wiggins v. Smith, the Court considered whether counsels decision to forgo investigating and presenting mitigating evidence of the defendant’s background at a capital sentencing proceeding violated the defendant’s Sixth Amendment rights. The Court held that the defendant’s counsel had performed inadequately, and in so doing, violated the defendant’s right to effective assistance of counsel. . . .
Outdoor sports represent a vital and prosperous aspect of American culture. As novice participation increases, recreation providers and instructors are often called upon to bring clients into expert situations despite the clients’ lack of skill and experience. When accidents occur, state courts and legislatures must consider issues of economic prosperity and accountability in determining who bears responsibility and liability. Historically, states subscribed to the doctrine of volenti non fit injuria by employing primary and secondary assumption of risk doctrines within comparative negligence schemes. While states typically make participants accountable for inherent risks of the sport, a recent California trend holds instructors and guides to a higher standard of care.
Some states first enacted recreation safety statutes in response to the landmark Sunday v. Stratton Corp. decision, which shifted the burden of liability to the activity provider. These statutes essentially rewrote common law by codifying the assumption of risk doctrine to protect the growing outdoor industry. Initially, only a few states enacted preliminary legislation and its scope was generally limited to skiing, roller skating, and equestrian sports. Today, some form of recreation safety legislation exists in forty-five states and the statutes range from general recreation applicability to specific sport protection. . . .
A lawyer representing a child finds himself in a serious ethical and legal dilemma when the child-client voices a position that the lawyer believes is incorrect and potentially harmful to the child. When representing an adult, the lawyer must follow the client’s objective even when he feels the position is unsuitable, but the rules are less clear when the client is a child.
The legal community is divided over the proper role for the attorney, some advocating for a best interests of the child approach, and others for a traditional client-directed approach. Many organizations and associations have enacted model standards to provide guidance and create uniformity in practice; however, the different model standards vary greatly, and no state has yet adopted one of the model standards. This lack of consensus continues to produce considerable confusion and debate surrounding the lawyer’s role in children’s representation. . . .
The jurisdictional limits of federal courts are defined by Constitution and statute and may not be expanded by judicial decree. Accordingly, the habeas corpus statute confers jurisdiction upon federal courts to review the legality of executive detentions of detainees held within their respective districts. In Rasul v. Bush, the Supreme Court of the United States considered whether the habeas statute provided federal courts with jurisdiction to entertain challenges from petitioners captured abroad and held in territories in which the United States commands plenary and exclusive jurisdiction, but not ultimate sovereignty. The Court concluded that federal courts possess jurisdiction and may consider legal challenges from detainees captured and held in such territories. . . .
The exchange above captures the frustration shared between a member of the House Financial Services Committee and an Enron director testifying about the problems that led to the corporation’s catastrophic fiscal demise. Yet aside from deterrence measures, it is largely the blind mice and absent-minded shopkeepers that Congress counts on to prevent future Enrons. The reliance of the Sarbanes-Oxley Act of 2002 (SOX) on independent directors may introduce a new era of progress, but may just as likely represent the federalization of concepts proved inadequate by the very corporate debacles that occasioned the legislation.
The corporate scandals and bankruptcies of 2001 and 2002 received widespread media coverage, shaking public confidence in the capital markets. The public outcry triggered a response by Congress that in some ways favored the immediacy of politics over long-standing policy. The collapses eliminated 35,000 jobs and wiped out $1 billion in employee pensions. Enrons bankruptcy alone represented a $29 billion loss to shareholders and former workers, while the failure of WorldCom cost shareholders a staggering $200 billion. In each instance, corporate officers perpetrated frauds on company shareholders and the investing public by falsifying financial disclosure while supposedly independent auditors remained complacent. . . .
In 1980, the Massachusetts legislature enacted a law ”concerning informed consent prior to abortion.” The law revised a parental consent provision the federal courts had struck down earlier and added a requirement that abortion consent forms include specific information. The law directed the State Department of Public Health to produce standard forms that describe the stages of fetal development, the type of abortion procedure to be used, any possible medical complications, and the alternatives to an abortion. The law also instituted a reflection period of at least twenty-four hours between the time a woman gives her consent and the scheduling of the abortion.
For reasons detailed below, the State has never enforced the provisions requiring a fetal description and reflection period. Legislation first filed in 2003 and refiled in 2005 seeks to re-institute these requirements and modify other parts of the current law. Similar proposals, which supporters call ”woman’s right to know” bills, have passed in thirty-two other states. . . .