jotwell.comJotwell - The Journal of Things We Like (Lots)

for: Facebook X RSS Jotwell The Journal of Things We Like (Lots) Home Archives Mission Statement Subscribe to Jotwell Help Support Jotwell Write for Jotwell FAQ Author Guidelines Acceptable Use Policy Copyright Policy Privacy Policy Contact Us JOTWELL 2014 Conference Jotwear Editors’ Section Select Page The Dubious Validity of the System of Deportation Arrests May 10, 2024 Jack Beermann Administrative Law Lindsay Nash, Inventing Deportation Arrests , 121 Mich. L. Rev. 1301 (2023). Jack Beermann Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind? When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash ’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law. Continue reading "The Dubious Validity of the System of Deportation Arrests" An Intelligent Call for a Mandate of Broad Judicial Construction When it Comes to Antiretaliation Claims May 9, 2024 Kerri Lynn Stone Work Law Daiquiri J. Steele, Rationing Retaliation Claims , 13 U.C. Irvine L. Rev. 993 (2023). Kerri Lynn Stone I have always been intrigued by the adjudication of workplace retaliation claims by U.S. courts. The act of retaliation itself, and the myriad ways that it is accomplished, is interesting because it can be subtle, served cold” (delayed), or barely perceptible. With that in mind, I recommend to you Daiquiri J. Steele’s Rationing Retaliation Claims . In this piece, Professor Steele thoughtfully takes on the issue of the U.S. Supreme Court’s fear of opening the floodgates” of litigation when it comes to retaliation claims in the employment context. Professor Steele concludes that this fear is overstated and misplaced,” a conclusion that I think is correct, and is also thoughtfully reached and well researched. This makes her piece a great contribution to the current discourse on this most important topic. Professor Steele argues persuasively that rather than sounding the alarm when it comes to the uptick in retaliation claims filed by employees, we should be paying heed to them, as they are a sign of intra-organizational conflict. Significantly, Professor Steele notes, these claims are properly surging, because, as her research documents, the practice of retaliation is surging. Moreover, according to Professor Steele, considerations of judicial economy are particularly misplaced in workplace retaliation cases,” because it is precisely the anti-retaliation statutory mechanisms and provisions that give civil rights statutes any teeth, so to speak, and enable plaintiffs to even think about coming forward to vindicate their rights without being intimidated. Continue reading "An Intelligent Call for a Mandate of Broad Judicial Construction When it Comes to Antiretaliation Claims" Double Negatives/Coming Around Again May 8, 2024 Katheleen Guzman Trusts & Estates Richard Storrow, Reviving Revival in the Law of Wills , 55 Tex. Tech L. Rev. 501 (2023). Katheleen Guzman I am embarrassed to admit the time it took for me to realize that words beginning with the Latin prefix re” generally denote something done over again: move and remove; solve and resolve; cognize and recognize. Relatedly, I’ve sometimes struggled with the concepts of two negatives equaling a positive, or whether the enemy of my enemy” was (really) my friend. In Reviving Revival in the Law of Wills , Professor Richard Storrow suffers no such problems. In addressing one of the more confounding doctrines of wills law–determining how to interpret the estate plan of a testator who executes a first will, follows it with a second valid instrument that fully or partially revokes the first, and later yet revokes the second will or codicil by physical act–he couples double-done and double-negative concepts to make and defend the straightforward proposition that revoking a revocation should equal revival. Indeed, by reminding readers of the ambulatory nature of wills – the anchor grounding testators’ understanding that they can later change the testamentary plans they make today” – he makes and defends a more subtle point: that the problem with revival doctrine is not so much one of testamentary intent but of testamentary expectation.” The act of revoking the second will, or the codicil, ought to restore the first will because a testator would expect that it does. This should surprise no one who holds to the notion that no will speaks until the death of its maker. But, Prof. Storrow intimates, it might surprise many readers to know that under modern doctrine, wills indeed speak immediately upon execution, perhaps most loudly to revoke any that had been written before. As such, Prof. Storrow’s article simultaneously revisits old doctrines with an eye toward clarifying them while also contemplating new and original theories of will . Continue reading "Double Negatives/Coming Around Again" Can Informed Consent Solve AI Bias? May 7, 2024 Nicholson Price Technology Law Khiara M. Bridges, Race in the Machine: Racial Disparities in Health and Medical AI , 110 Va. L. Rev. 243 (2024). Nicholson Price Artificial intelligence (AI) is moving increasingly rapidly into health care (as indeed into everything else). But it has problems there (as indeed everywhere else!). What’s to be done, in particular, about the deeply embedded biases along racial and other lines that permeate the whole world of health and, as such, are likely to be encoded in AI? Khiara Bridges gives an answer that seems mild but carries roots of revolution. In Race in the Machine: Racial Disparities in Health and Medical AI , she argues that informed consent is a key lever to pull in fighting these racial disparities. But not because informed consent—at present, mostly a formality, a begrudging nod to autonomy —will fix the problem in its current state. Instead, Bridges argues, informed consent, beefed up and focused on conveying the brutal truth about encoded racial disparities, can form the foundation for revolutionary social changes in health care, health, and beyond. Curious? Read on! Continue reading "Can Informed Consent Solve AI Bias?" A Low-Carbon Future for America’s Smaller Legacy Cities May 6, 2024 Gregory M. Stein Property Joseph Schilling, Catherine Tumber, & Gabi Velasco, Greening America’s Smaller Legacy Cities (2023). Gregory M. Stein Many of America’s large coastal cities are prospering. Large, industrial rust-belt cities have struggled in recent decades, but some have begun to recover, making up for lost factories and shrinking populations with high-tech jobs that attract younger workers. But what about small to midsize industrial cities – places like Youngstown, Dayton, Trenton, and Harrisburg? In their new report, Greening America’s Smaller Legacy Cities , Joseph Schilling, Catherine Tumber, and Gabi Velasco make the case that an equitable and sustainable low-carbon future is essential for smaller and midsize legacy cities to...