Current Issue

  • Volume 12,
  • Number 2 -
  • 2016


The Potential Utility of Disciplinary Regulation as a Remedy for Abuses of Prosecutorial Discretion

By: Samuel J. Levine

The Dynamic Relationship Between Freedom of Speech and Equality

By: Timothy Zick

This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on free speech doctrines, principles, and rights. The free speech-equality relationship underscores several important lessons regarding reliance on speech rights to advance constitutional equality. Moreover, through a comparative analysis, the Article demonstrates that freedom of speech intersects in distinctive ways with different types of equalities. The Article’s general lessons and comparative observations carry important implications for future equality movements, including the current campaign for transgender equality

Arbitrary Detention? The Immigration Detention Bed Quota

By: Anita Sinha

When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at the Congressional immigration detention bed quota. It details its legislative history, and the relationship between the quota and private prisons in the immigration detention system. It situates the provision in a conversation about quotas generally, both in the law enforcement context and also in relation to the significance of quotas in U.S. immigration law historically. The Article then examines the bed quota through the lens of foundational as well as present-day jurisprudence on immigration detention and the Due Process Clause of the Fifth Amendment of the U.S. Constitution. It also analyzes the quota through international human rights law, particularly the protections related to arbitrary detention and vulnerable migrants. The Article concludes with policy considerations that caution against Congress imposing the immigration detention bed quota.

Breaking the Cycle: Countering Voter Initiatives and the Underrepresentation of Racial Minorities in the Political Process

By: Kristen Barnes

This Article examines issues of inequality in education, minority representation, and access to the political process. The Article considers constitutional protections and other legal mechanisms available to racial minorities to nullify or circumnavigate majoritarian voter initiatives that seek to override federal constitutional guarantees and United States Supreme Court holdings on the validity of the use of race in university admissions decisions. Voter initiatives have been used to undermine the socio-economic and political interests of vulnerable communities. In the education realm, affirmative action opponents are increasingly adopting this instrument to defeat race-conscious admissions policies. This Article focuses on several seminal cases involving the political process doctrine, including the Court’s most recent decision, Schuette v. Coalition to Defend Affirmative Action. In Schuette, the Court held that the amendment to Michigan’s Constitution, which prohibits governmental entities from utilizing race-conscious policies, is valid under the Equal Protection Clause. In so holding, the Court failed to adequately address the argument that the amendment leaves some minorities without meaningful access to the political process. This Article proposes recommendations for ensuring that the rights of minorities are adequately represented.

Custody: Kids, Counsel and the Constitution

By: Amy Halbrook

Fifty years ago, the United States Supreme Court in In re Gault held that children have the constitutional right to traditional counsel in cases where their physical liberty interests are at stake. As a result, children are provided counsel during the adjudication phase of delinquency proceedings in order to ensure protection of their rights. Gault did not, however, extend the automatic right to traditional counsel to other contexts in which children most frequently appear in court: family law cases.

This Article explores whether a child’s right to traditional counsel should be extended to children in the private custody context. The article reviews cases that have explicitly expanded children’s rights since Gault, both children’s cases expanding their rights in various contexts and adults’ cases with implications for children in the family context. In addition, it reviews current inconsistencies in practice, rules and standards related to children’s attorneys. It concludes that children’s constitutional rights require traditional client-directed advocacy by attorneys in custody matters, and recommends a role of counsel that protects constitutional rights while ensuring consistent and ethical advocacy by children’s attorneys.