Author: Jaya Ramji-Nogales


The Supremes Speak

This week, the Supreme Court took the rare step of deciding an asylum case, Negusie v. Holder, which examines the availability of a duress exception to the persecutor bar. The Court has decided very few asylum cases in its history, and when it does so, the result is often messy. The Negusie decision is no exception– while Justice Kennedy commands a majority of six, the proliferation of concurrences and dissents doesn’t inspire confidence in the unity of the court. It does, however, make for a fun read for immigration law junkies as well as for aficionados of administrative law and moral philosophers.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the authority to interpret the Immigration and Nationality Act — the federal courts or the Board of Immigration Appeals (the administrative entity charged with reviewing immigration court decisions and establishing national uniformity in immigration law). Kennedy’s majority opinion gives some deference to the administrative agency (deference that, in my opinion, is misplaced, given the dysfunctional nature of the Board, which I’ve discussed in more detail here), finding that while the Board misapplied precedent in interpreting the statute to preclude a duress exception to the persecutor bar, it should be allowed to reinterpret the statute free from this error. But as Scalia notes in his concurrence, the tone of the opinion indicates that Kennedy thinks the Board should come down in favor of a duress exception. Scalia disagrees with this approach, arguing that the Board “deserve[s] to be told clearly whether we are serious about allowing them to exercise . . . discretion, or are rather firing a warning shot across the bow.”

Stevens and Breyer, on the other hand, think the warning shot isn’t clear enough, finding that the question of whether the duress exception exists is one for the courts, and that the role of the administrative agency should be to determine how to apply the standard to be used in deciding whether participation in persecution was voluntary or coerced. Thomas doesn’t explicitly address whether the authority to interpret this provision of the statute should lie with the courts or the administrative agency; he thinks that the Board’s underlying decision was correct because the language of the statute doesn’t contain a duress exception.

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Layoffs, Layoffs Everywhere

Though news of law firm layoffs, not to mention offer rescission and complete dissolution, has been brewing for some time now, government and non-profit jobs, though harder to come by, have seemed relatively more secure. Not so, as I learned from a former colleague at the ACLU last month, where Madoff-related investments forced layoffs of ten percent of the workforce, including several staff attorneys. As a former staff attorney at the ACLU, those positions appeared to be some of the most secure in the legal profession — yours to keep for as many years as you wanted, until poof! they disappeared. And just last week, a former student of mine reported that the Philadelphia District Attorney’s Office rescinded the thirteen offers it made this year (in contrast to the 25 it extends in a normal year) to third-year law students. As another student on the public interest job hunt noted today, “I thought that was why I became a professional!” Indeed — that was the deal we all signed up for; we’d put our noses to the books for three long years, incurring piles of debt, but we’d still have jobs in an economic downturn. Wouldn’t we? While job losses may be more severe outside the legal profession, a law degree is certainly no panacea, and some may begin to wonder exactly what is the value added from three years of expensive education. At the moment, I’m not sure I have an answer for my talented and hardworking students struggling to find permanent employment after graduation.


Empiricizing Transitional Justice

The Human Rights Center at UC Berkeley released this month “a population-based survey on attitudes about social reconciliation and the Extraordinary Chambers in the Courts of Cambodia” entitled So We Will Never Forget. Of the several surveys of the Cambodian public on accountability for the Khmer Rouge that have been completed in the past decade (including one by yours truly), this is the most scientifically planned and executed, with rigorous methodology and a wide sampling of the Cambodian population.

There’s much of interest in this report for those participating in accountability efforts. First, the report underscores the need for a serious public education effort around the tribunal. Of the respondents who did not live under the Khmer Rouge regime, 81% described their knowledge of that period as poor or very poor. Given that 68% of Cambodia’s population has been born since the Khmer Rouge left power, that’s a very concerning statistic. Moreover, 39% of those surveyed had no knowledge of the Extraordinary Chambers and 46% had only limited knowledge. The court and non-governmental organizations have a great deal of headway to make in educating the Cambodian public about the ECCC and the Khmer Rouge era.

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Courting Genocide?

This week, Peter Spiro and I hosted Jide Nzelibe at Temple’s International Law Colloquium. Jide presented his work-in-progress, Courting Genocide: The Unintended Effects of Humanitarian Intervention, on which Kristen Boon provided commentary. While I had several smaller quibbles and a few larger criticisms of the paper, it moves the scholarship on humanitarian intervention a step forward, as Kristen noted, by examining the motivations of all of the actors involved and suggesting that the effects of humanitarian intervention may not always be benign. Jide’s basic thesis is as follows:

because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place

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A Role for Law?

Lisa Belkin has a great article in this week’s NY Times Magazine about the need to redefine “experience” more broadly in order to ensure gender equity in career advancement. Using Caroline Kennedy’s non-traditional career path as an example, Belkin explains that women who step out of the workplace for several years in order to parent full-time are often viewed as lacking relevant and necessary experience to return to their prior careers or take up a new career. Belkin posits that we should instead view such women as having “a range of experiences, many shaped by motherhood.” She continues, “The only way work will become more flexible for everyone, for all of us, is if the untraditional begins to count.”

Having long subscribed to the view that we will see complete gender equity in the workplace only when working fathers take an equal role in parenting, which would require them to avail themselves of the same parental leaves and difficult career decisions that working mothers face, I find Belkin’s argument an interesting route to the same end. Rather than taking the larger step of ensuring that everyone who chooses to parent, male or female, shares equally in the career impact of that decision, Belkin’s approach takes baby steps towards that goal by trying minimize the career impact for those who temporarily step out of the workplace to parent. While there are promises and pitfalls to each approach, I’m more interested today in thinking about whether law can play a role in operationalizing these strategies.

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The Economy and Immigration

Following up on Frank’s excellent post on outward manifestations of the financial crisis, here are a couple of less obvious ways that the meltdown might affect immigrants. First, the counterintuitive: immigrants may end up with more money in their pockets. Second, the ugly: we may see an increase in hate crimes against immigrants.

The obvious answer to the question of how the economy will impact immigration is that it will decrease border crossings –fewer jobs across the board and particularly less disposable income in the hands of those who pay immigrants to work in their homes will mean less demand for labor. Combined with harsh workplace raids and tightening borders, we’d expect the financial crisis to result in a decrease in immigration. While that was the trend at the beginning of the meltdown, the recent strength of the dollar may end up reversing this expected outcome. As AP reports today, remittances to Mexico in October increased by 13% over October 2007, as a strengthened dollar bought more weakened pesos. Dilip Ratha of the World Bank predicts that this phenomenon might actually lead to an increase in immigration to the U.S., especially as inflation and unemployment climb in Mexico.

Particularly with an increase in immigration, the ugly side of the economic crisis may be an increase in hate crimes against immigrants. The FBI reports that hate crimes against Latinos have increased dramatically — by 40 percent — from 2003 to 2007 (while the Latino population grew by only 16 percent). Call it the “Lou Dobbs” effect; as xenophobic vitriol and resulting anti-immigrant sentiment has increased, so has violence against immigrants or those who appear to be immigrants. Add that to an economy in free-fall, and the result may be highly combustible. As we saw in Long Island last month and Pennsylvania earlier this year, horrifying pastimes such as “beaner hopping” may proliferate as hate-mongering politicians and journalists scapegoat immigrants for job losses and other woes. Vigilant enforcement of hate crime statutes may alleviate some of the simmering tensions, but effective change will require more flattering portraits of immigrants in the popular media and public eye.


What, Me, Politically Irrelevant?

Wait a minute, what’s that “whhhsshhht” sound I hear? No, it’s not the economy deflating, silly; it’s a law professor’s ego coming back down to earth. The NY Times reports today that “[t]hree sets of researchers recently concluded that professors have virtually no impact on the political views and ideology of their students.” Apparently the American Enterprise Institute’s fear of the “liberal thugocracy” of academia is overblown; parents and family are a much better predictor of an individual’s political predilections. Indeed, one study author goes on to assert that it’s difficult to change the political views of anyone over fifteen years of age. So much for inspiring social justice crusaders through Civil Procedure I or public defenders through Evidence. I’ll just crawl back into my little cave and watch some more YouTube videos mocking Sarah Palin.

Seriously, while I would hope that most law professors would agree that it’s not our mission or even our intention to change the political views of our students, I was surprised that college professors didn’t have more influence over their students’ ideology. Perhaps it’s because I attended that bastion of left-wing thuggery, UC Berkeley, but I suspect that my college professors had far more influence over my understanding of the world and thereby my political views than anyone before or after, including my parents and my law school professors. Certainly, I chose a particularly liberal school because of my pre-existing political leanings, but I do think there’s something to the idea that the person who provides the framework through which one views the world has a tremendous influence over one’s ideology, and that college professors are the most likely candidates to provide such frames — both because creating analytic frames is what they do for a living and because college students’ minds are relatively spongy and thus open to such frames. Were others as surprised by the outcomes of these studies as I was?


Proposition 8’s Moral Dilemma

rainbow flag.jpgMost readers are likely familiar with California’s Proposition 8 — a ballot initiative to eliminate the right of same-sex couples to marry by amending California’s state constitution (and thus overriding the California Supreme Court’s In re Marriage Cases decision this spring that found a right to same-sex marriage under the California constitution). In short, a “yes” vote on Proposition 8 ends gay marriage in California; a “no” vote protects the right to gay marriage.

Imagine that you are participating in a phone bank placing calls to encourage Californians to vote against Proposition 8 (in other words, you favor gay marriage). You place a call, and the voter on the other end tells you that she is opposed to same sex marriage and that’s why she’s voting no on Proposition 8. Your response? Do you say “Thanks for your time — make sure you get to the polls!” or do you correct her error, and explain that a no vote on Proposition 8 is actually a vote in favor of gay marriage?

After a friend recounted this real-life scenario this weekend, we presented the question to several (opposite sex) couples, and found that a fault line ran straight down the middle of each pair — most frequently (but not always), the women thought that there was no need to correct this voter’s error. There were two arguments made on this front; first, that there’s no obligation on the caller’s part to remedy the voter’s misperception, which was not, after all, created by the caller. Second, getting into the means-ends debate, the greater moral good of allowing gay marriage justifies the perhaps less moral stance of allowing this confused individual to vote against her true preferences. On the other side, most (but not all!) of the men argued that the ends don’t justify the means, and that the caller had a moral obligation to correct the voter’s misconception of Proposition 8. Their argument went something like this — you’re out canvassing for Obama on election day and someone you stop on the street says, “I’m not interested because I’m heading into that voting booth right now to vote for McCain!” If this voter is actually walking into the wrong polling place (assume, for argument’s sake, that you know where they should be voting) and will not be allowed to vote, are you justified in failing to correct their error? I omit the obvious and interesting counter-arguments here, but am intrigued to hear how readers in the caller’s shoes would have responded.

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Of International Crimes and Memory Sticks

memory stick.jpgPerhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government’s seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, “I KNOW I had that memory stick around here somewhere.” And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.

While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.

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Fear Not the Inadvertent Waiver

documents.jpgFor those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.

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