Deferred Immigration Action and the Limits of Executive Enforcement Discretion

Abstract: The Deferred Action for Childhood Arrivals (DACA) scheme was first announced by President Barack Obama in 2012, and subsequently extended in 2014. DACA allows for illegal immigrants who meet certain criteria to apply for deferred action status, which exempts them from deportation proceedings for two-year periods. From its inception, the Administration has justified DACA’s legality based on the notion of “prosecutorial discretion,” that is, the wide latitude given to the government in deciding whether to initiate prosecutions for legal violations. Nevertheless, DACA has been the subject of fierce controversy since 2012: critics of the Administration maintain that it represents an impermissible abdication of the President’s constitutional duties, and amounts to a unconstitutional act of law-making by the President. This article argues that DACA represents a lawful exercise of prosecutorial discretion, but that President Obama’s overuse of the concept may have unwelcome consequences for the constitutionally-enacted balance of power between Congress and the President.

Author: Yuan Yi Zhu is a fourth-year at McGill University, majoring in Political Science and History.

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Judges, Jurors, and Punitive Damage Awards: Avoiding Over-Deterrence

Abstract: In most punitive damage award cases, in exchange for an added sense of legitimacy, the court entrusts the jury with interpreting the case’s facts, comprehending the judge’s instructions, and accurately applying the facts with the guidance of judicial instructions to arrive at the size of a punitive damage award. The jury, research reveals, often falls short on its end of the bargain. Because jurors often do not entirely comprehend jury instructions, jurors resort to cognitive biases that, inter alia, encourage awards substantial enough to create over-deterrence, a significant problem that forces corporations to take socially excessive precautions. Ideally, the over-deterrence created by the current design of jury instructions could be resolved by simply increasing jurors’ comprehension through the improvement of jury instructions. However, as this article will explore, the effectiveness of modifications to jury instructions is conditioned not only on jurors’ comprehension, but also on jurors’ adherence to the spirit of court procedures. The seemingly irresolvable shortcomings following from jurors’ cognitive biases direct this article to conclude that the solution to mitigating the effect of jurors’ cognitive biases on punitive damage awards is to redefine the roles of juries and judges in cases of punitive damages: juries should determine liability and judges should decide the size of an award.

Author: Alec Konstantin is a third-year at the University of California, Berkeley, majoring in Legal Studies.

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Autonomous Automobile Liability

Abstract: I argue that autonomous cars, by their nature, present an unusual case in product liability in the event of accidents, considering that vehicle collisions are traditionally considered strict liability cases in which drivers are responsible. I derive a “wheel or button” standard which holds that, in the cars of the future, in which we merely enter a destination on a touchscreen, liability for accidents should lay with the manufacturer.

Author: Evan Zimmerman is a third-year in the College, majoring in Economics, Mathematics, and Statistics.

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On The Regulation of Conflict Minerals

Abstract: Conflict minerals originate from the Democratic Republic of Congo (DRC) and surrounding countries and have partially financed armed groups for more than a decade. While they might be traded globally for a variety of purposes, frequently they are utilized as components of highly desired electronic products. In 2010, the United States became the first country in the West to legislate against conflict minerals when it passed Section 1502 of the Dodd-Frank Consumer Protection Act. This section, while not prohibiting the import of conflict minerals, requires companies doing business in the U.S. to disclose whether their products contain minerals from the DRC and surrounding region, and, if so, whether the trade of these minerals funded armed groups active in the area. Domestically, the law has faced legal challenges by members of the electronics industry negatively impacted by its operation.

Notably, the law has resulted in a de facto embargo on Congolese minerals, as companies have simply divested from the DRC in an attempt to avoid being branded as financers of war and to side-step the law’s regulatory impositions. In spite of this de facto embargo, there has been very little discussion in the United States about whether the law violates any World Trade Organization trade agreements. Nevertheless, this article notes arguments against the legal validity of American regulation of conflict minerals by considering challenges to the U.S.’ Country of Origin Labeling (COOL) provisions, which mandate disclosures about traded livestock, and the Kimberley Process Certification Scheme (KP), which seeks to eliminate the trade of conflict (blood) diamonds. In short, the legality of the U.S.’ regulation of conflict minerals is not a settled issue; instead, this question merits greater discussion than it has received.

Author: Michael Kinzer is a fourth-year at American University, majoring in International Studies.

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Equal Pay, Unequal Application: Equality Provisions in the ECJ and the Limitations of the Neo-Functionalist Model

Abstract: Few political institutions have attracted as much scholarly attention as the European Community (EC). What was originally conceived as a limited organization serving the economic interests of Member States has become a “quasi-constitutional federal entity” with vast jurisdiction over financial, social, and legal matters throughout the European Union. In the wake of these developments, neo-functionalist theorists have characterized European integration as a progressive move toward supranational rulemaking and governance. This paper challenges that characterization by arguing that EU Member States have in fact resisted integration. By integrating a historical approach to the women's rights movement in Europe with a theoretical analysis of the European legal system, I conclude that many countries have in fact been successful at limiting integration and maintaining local legal authority over rights. To more efficiently and equally promote supranational authority over rights, access to courts will have to be increased at the individual level, and advocacy and interest groups promoted.

Author: Cameron Langford is a fourth-year at Princeton University, majoring in Politics.

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State-Level Carbon Regulation and the Dormant Commerce Clause: the Use of the Public-Function Exemption

Abstract: In the vacuum of federal action on climate change, many states are taking the lead by implementing state and regional initiatives to curb greenhouse gas emissions. However, efforts to limit carbon emissions often require restrictions on certain carbon-intensive energy sources and can thereby impact energy markets and interstate commerce. As a result, state efforts face constitutional challenges under the dormant Commerce Clause as opponents argue that these policies are facially discriminatory and have an extraterritorial reach. To potentially alleviate this problem, Lawrence Fogel has suggested applying the public-function exemption to the field of carbon regulation, which would soften scrutiny of such regulation under the dormant Commerce Clause by regarding carbon regulation as a legitimate local function of state governments. So far, the public-function exemption has not been used in major court cases, such as Rocky Mountain v. Corey and North Dakota v. Swanson, to support the constitutionality of state-level carbon regulation. Nevertheless, there is still potential for the public-function exemption to be used to uphold state carbon regulation, especially as courts increasingly accept the role of states in experimenting with carbon regulation.

Author: Young-Eun (Amber) Kim graduated from Carleton College in 2014, with a B.A. in environmental studies.

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