When Congress Requires Nationwide Injunctions, 91 Colorado. L. Rev. __ (invited contribution, forthcoming 2020).
Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49 (2017) (with Spencer Amdur) (cited in California v. United States, 941 F.3d 410, 421-22 (9th Cir. 2019) and (briefly and unfavorably) in Trump v. Hawaii, 138 S. Ct. 2392, 2429 (2018) (Thomas, J., concurring)).
The Failure of Immigration Appeals, 164 U. Penn. L. Rev. 1177 (2016)
Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. Yet this Article demonstrates that the appeals process for the immigration courts—a system of administrative adjudication that makes as many decisions as the federal courts—does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal, either by the Board of Immigration Appeals or a federal Court of Appeals. Why? To explain this puzzling finding, I use an internal administrative database, obtained by Freedom of Information Act request, to track the decisions of initial immigration judges on appeal. I find that the Board of Immigration Appeals and the Courts of Appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board of Immigration Appeals therefore rarely reviews the removal orders of immigrants who might have meritorious claims, but who are assigned harsh judges and lack lawyers at the beginning of their proceedings. These quantitative findings, together with interviews and immigration court observation, point the way to reform. First, the Board of Immigration Appeals and the Courts of Appeals should adopt a less deferential standard of review of an immigration judge’s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants, allowing the Board more often to review judges’ decisions about continuances, which are rarely appealed. Finally, and most broadly, the government should appoint counsel for immigrants in removal proceedings.
Measuring the Economic Effect of Alien Tort Statute Liability, 32 J. L. Econ. & Org. 794 (with Darin Christensen) (2016).
In Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court dramatically restricted the scope of the Alien Tort Statute, holding that the statute does not permit victims of human rights abuses to sue foreign corporations for violations of international law that took place entirely abroad. We draw on three unique characteristics of the decision to provide credible empirical evidence of its effect on companies' valuations. First, we show that extractive industry firms with headquarters abroad experienced larger cumulative abnormal returns following the ruling. By contrast, similar U.S.-based firms—which generally remain subject to Alien Tort Statute liability—did not benefit from the decision. Second, we demonstrate that foreign-based firms benefited both on the final decision date and on the earlier date when the Court slated the case for reargument on the issue of extraterritoriality. Third, we show that this effect varied with the human rights records of host countries: mining firms based abroad with subsidiaries in countries with poor human rights records benefitted most. Although our results cannot resolve debates over the average merit of ATS suits, we do show that the Kiobel decision mattered: it decreased the cost, for foreign firms with some presence in the United States, of doing business under regimes with records of human rights violations.
Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court, 84 Fordham L. Rev. 1823 (with Jayashri Srikantiah) (2016) (invited contribution).
Since 2014, U.S. immigration courts have expedited the cases of many children and families fleeing persecution in Mexico and Central America. This Article conducts an empirical and legal analysis of this policy, revealing that reasonable time between immigration court hearings is necessary to protect the statutory and constitutional rights to legal representation. A large majority of immigrants facing deportation—including those part of the recent surge of children and families from Central America and Mexico—appear at their first deportation hearing without a lawyer, often because they cannot afford one. When an immigrant appears without a lawyer and does not expressly waive his or her right to counsel, the immigration judge (IJ) must grant a continuance that allows a reasonable period of time for an immigrant to search for and retain counsel. Yet existing law does not specify what period of time is reasonable, and the courts of appeals disagree over how closely to scrutinize an IJ’s decision to deny a continuance. In this Article, we use schedule data from the Executive Office for Immigration Review to show that the length of a continuance has a large effect on immigrants’ likelihood of finding counsel, of appearing at subsequent hearings, and of eventually avoiding removal. Our analysis demonstrates that shorter continuances for unrepresented children and families prevented many from finding counsel and avoiding deportation. In light of these findings, we examine the due process and statutory consequences of an IJ’s decision to deny a continuance or to grant an overly short continuance. We conclude by recommending that initial continuances of fewer than ninety days should be presumptively invalid.
Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California, 11 Stan. J. Civil Rights & Civil Liberties II:1 (with Jayashri Srikantiah & Lisa Weissman-Ward).
Note, How Congress Could Reduce Job Discrimination by Promoting Anonymous Hiring, 64 Stan. L. Rev. 1343 (2012).
The Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes made clear that Title VII can do little to address the problem of unintentional bias in employment decisions. This Note proposes a new legal solution to that problem: Congress should encourage firms to hire anonymously. The case for anonymous hiring—stripping resumes of all information related to race or sex, and eliminating selection interviews—rests on two lines of psychology research. First, experiments show that unconscious bias infects resume review and selection in- terviews, causing even well-intentioned employers to discriminate. Second, dozens of psychology studies suggest that interviews are poor tools for predicting job performance. Together, these studies suggest that anonymous hiring should both decrease discrimination and help firms hire more productive workers. This conclusion is counterintuitive, however, and firms need an incentive to hire anonymously. A new statutory defense to Title VII disparate treatment claims would provide that incentive, reducing liability insurance premiums for anonymous hirers. A fraud exception to this defense, together with continued disparate impact liability, would prevent firms from using anonymous hiring as a shelter for discrimination. Furthermore, anonymous hiring could incorporate affirmative ac- tion to break ties among similarly qualified applicants. The policy would also reduce hiring discrimination based on weight, size, or attractiveness—without changing federal law to protect those characteristics directly.
Government Noncompliance with Constitutional Court Orders in South Africa, in Brandon Bartels & Chris W. Bonneau, Making Law and Courts Research Relevant: The Normative Implications of Empirical Research. Routledge (2014).
This essay presents evidence that the South African government has partially failed to comply with at least one third of the Constitutional Court orders issued to it between 1995 and 2011. That partial compliance most often reflected 1) legal uncertainty about the dictates of the order, making plaintiffs hesitant to return to court and 2) administrative incompetence or inertia. Given those empirical conclusions, I argue that most noncompliance is undesirable, and that routine monitoring of government compliance, by either court officials or an independent agency, could substantially reduce noncompliance simply by bringing it to light.