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1. Universal Representation: Systemic Benefits and the Path Ahead

Author:
Lindsay Nash
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
At a time when politics, financial considerations, and a push for expediency put pressure on the US immigration system, it can be difficult to have faith in the adjudicatory process. Case resolution quotas, directives that constrain courts’ ability to render justice in individual cases, and executive decisions that contract immigration judges’ discretion contribute to an immigration system that looks less and less like judicial adjudication of some of the highest-stakes cases in our legal system and more like a ministerial claims-processing scheme. A ray of hope exists, however, in the proliferation of public defender–style systems that offer universal representation to those facing deportation. This essay describes the genesis and expansion of the universal representation movement — a project based on the idea that indigent individuals should be entitled to counsel regardless of the apparent merits or political palatability of their case. It describes the benefits of such a program to the immigration adjudication system writ large. Beyond the oft-cited increase in success rates for individuals represented and the benefits to the communities in which such programs are located, universal representation promotes the integrity of the court system and strengthens an adjudicatory procedure that, for too long, has functioned primarily to expeditiously churn through cases. Finally, looking forward, it considers some of the challenges this movement faces as it grows and it identifies areas for further expansion.
Topic:
Immigration, Border Control, and Legal Theory
Political Geography:
United States and North America

2. Reforming Investor-State Arbitration by Recourse to the Domestic Courts of Host States

Author:
Armand de Mestral and Lukas Vanhonnaeker
Publication Date:
09-2019
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
In response to concerns raised about investor-state arbitration (ISA), different proposals for reform of this means of dispute settlement have been proposed. One such proposal is to entrust domestic courts with the resolution of investment disputes. Although opting for the resolution of investment disputes before domestic courts has led to some discussion about the advantages and difficulties of this approach, very few studies have analyzed the specificities of domestic regimes in this regard. Many questions remain unanswered, including whether foreign investors have, in practice, access to domestic courts in the host state and whether the remedies available domestically are comparable to those available in ISA. In an attempt to answer some of these questions, a questionnaire was prepared and answered by respondents in 17 countries, in addition to Canada, from different regions of the world.
Topic:
Reform, Democracy, Legal Theory, and Investment
Political Geography:
United States, Canada, South America, North America, Mexico, and Peru

3. American Gothic: How Chicago Economics Distorts “Consumer Welfare” in Antitrust

Author:
Mark Glick
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
Since the publication of Robert Bork’s The Antitrust Paradox, lawyers, judges, and many economists have defended “Consumer welfare” (CW) as a standard for decisions about antitrust goals and enforcement priorities. This paper argues that the CW is actually an empty concept and is an inappropriate goal for antitrust. Welfare economists concede that there is no credible measurable link between price and output and human well-being. This means that the concept of CW does not legitimate limited antitrust enforcement, nor does it justify the exclusion of other antitrust goals that require more active enforcement practices. This paper contends that antitrust policy is not welfare based at all, and that if it were, antitrust policy and enforcement would differ significantly from the Chicago School vision. Without the fiction that economists can establish that in the short run lower price and higher output measurably increases welfare more than other goals, recent defenses of the CW standard resolve down to arguments based on unsupported assumptions.
Topic:
Economics, Law, Legal Theory, Economic Theory, Macroeconomics, Antitrust Law, and Microeconomics
Political Geography:
United States

4. Making Enhanced CACs the Rule: A Proposed Amendment of the Foreign Sovereign Immunities Act

Author:
Gregory Makoff
Publication Date:
09-2018
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
The recent rise in sovereign debt litigation in the US Federal Court System is an unintended consequence of the US Foreign Sovereign Immunities Act of 1976 related to an unanticipated shift of the international sovereign debt market from a narrow loan market to a global bond market. Collective action clauses (CACs) — developed in 2003 and “enhanced” in 2014 — are, in theory, an effective contract-based tool to facilitate orderly debt restructurings and control the holdout creditor problem. However, compliance by countries is voluntary and may not be sustained. To assure sustained compliance and to reduce the future incidence of holdout creditor litigation, the US Foreign Sovereign Immunities Act should be amended to provide that only bonds with enhanced CACs will be subject to suit and enforcement in the US courts.
Topic:
Debt, Legal Theory, Credit, and Global Bond Market
Political Geography:
United States and North America

5. The DACA Era and the Continuous Legalization Work of the US Immigrant-Serving Community

Author:
Donald Kerwin, Roberto Suro, Tess Thorman, and Daniela Alulema
Publication Date:
02-2017
Content Type:
Working Paper
Institution:
Center for Migration Studies of New York
Abstract:
In June 2016, the Center for Migration Studies of New York (CMS), with support from the Open Society Foundation’s Emma Lazarus Fund II (OSF / ELF II), initiated a study on the work of non- governmental and community-based organizations (NGOs and CBOs) and their public and private partners to build capacity and to prepare to implement a large legalization program. Over a three-month period, the CMS team interviewed more than 40 agencies and 66 individuals, and intensively analyzed the work of five communities on the Deferred Action for Childhood Arrivals (DACA) program, expanded DACA (known as DACA-plus), and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The study assessed the progress of the NGO/ CBO community in building capacity to promote maximum participation in DACA, to enlist DACA beneficiaries in service, advocacy and community organizing work, and to prepare for a future large-scale legalization program. The study covers the period from DACA’s inception in 2012 to the eve of the presidential election. The prospects for any kind of legalization in the short term have darkened with the election of Donald J. Trump, and the prospects for widespread and potentially draconian enforcement actions have heightened. Although this project was commissioned, conceived, and executed with a legalization program in mind, its findings on the capacity of the immigrant-serving sector remain timely and relevant. This report presents a narrative of how the sector developed over the past four years and assesses its capabilities. As such, it presents a valuable catalogue of assets as the sector considers how it will respond to the challenges ahead. Building greater capacity to serve immigrant communities has become an even more urgent task since the presidential election. Recommendations formulated for a potential legalization program can serve as a starting point for the development of strategies to contend with the Trump administration’s immigration and refugee policies.
Topic:
Immigration, Legal Theory, Humanitarian Crisis, and DACA
Political Geography:
United States, Central America, and North America

6. DECOLONIZATION IN THE CONSTITUTIONAL SYSTEM: INDIGENOUS RIGHTS AND LEGAL PLURALISM, A COMPARATIVE STUDY BETWEEN BOLIVIA, COLOMBIA, AND ECUADOR

Author:
Sergio Miranda Hayes
Publication Date:
05-2017
Content Type:
Working Paper
Institution:
The New School Graduate Program in International Affairs
Abstract:
In the academic world, scientific literature comes mainly from the western part of the globe. Ramón Grossfoguel believes that knowledge is determined by power relations in the "post-colonial" era (Grossfoguel, 2002: 16). This means that Western powers dominate the academic world. In constitutional law, this is not the exception. However, while we can accept that it is true that many constitutional provisions, doctrine, jurisprudence and theories of Western constitutional law have influenced Latin American countries, most of these countries have also developed their own constitutional systems that have specific and new features, whose unique identity differentiates them from other systems in the world. In this paper, I will try to study the special features that Bolivia, Ecuador, and Colombia have in the recognition of indigenous rights and legal pluralism, whose discursive axis entails a “decolonizing” spirit which is the retrieval of their own institutions against the trends of hegemonic governance of the western culture as I will explain later. Latin America has faced numerous problems concerning social differentiation. In the opinion of one of the most cited authors in Latin American constitutional law, Raquel Yrigoyen, the disadvantaged were left behind from the social, economic and political issues through legal measures created by people of a favored minority, in order to maintain privileges (Yrigoyen, 2011: 139). In the case of Latin America, many of the disadvantaged match to be those survivors of the brutal Spanish conquest; the native Indians. I have chosen these three countries since they have a significant indigenous population; more than 36.6 million indigenous people in the region. In Bolivia, the number rises to 4,115,222 natives, in Ecuador 1018176,and in Colombia 1392623. (World Bank, 2014: 24-25) The Constitutions of Colombia (1991), Ecuador (2008) and Bolivia (2009) reflect the new “decolonizing” ideology; Colombia through its jurisprudence, on the one hand, and Bolivia and Ecuador, proclaiming themselves "Plurinational”countries on the other. All made great strides in recognizing indigenous rights and, consequently, in gaining their social inclusion. (Gargarella, 2014: 175) Constitutional systems are a product of history and the struggle of peoples. In these cases, the effort to include indigenous peoples in the economic, political and social spheres resulted in these new constitutional models which can be understood through a comparative study.By understanding this, advantages and disadvantages of each country to improve social inclusion of indigenous peoples in all the mentioned spheres can be found. In the first title, I will talk about the meaning of legal pluralism. In the second, I will discussthe new models of statewhich are conditioned by legal pluralism and indigenous rights. In the third, I will address indigenous autonomies and jurisdictions that are the subject of our study. And in the remaining two titles, I will discuss the most distinctive features, and rights arising from the recognition of this unique legal pluralism. All this with the purpose of exposing the new constitutional spirit of "decolonization" of these countries.
Topic:
Human Rights, Post Colonialism, Legal Theory, Colonialism, Decolonization, and Economic Inequality
Political Geography:
United States, Colombia, South America, Latin America, North America, Ecuador, and Bolivia

7. Are U.S. Drone Strikes Legal?

Author:
Kate Martin
Publication Date:
04-2016
Content Type:
Working Paper
Institution:
Center for American Progress - CAP
Abstract:
There has been much controversy and criticism about drone strikes conducted by the United States, especially those that have targeted Al Qaeda operatives outside Afghanistan in Yemen, Somalia, and the border regions of Pakistan. Many questions have surfaced about the effectiveness of using drone strikes. There is also a widespread perception that strikes have killed many civilians and that they are illegal. The Obama administration recently promised to release information about the number of civilians killed, as well as its policy guidance governing drone strikes outside Afghanistan. However, this new information is unlikely to directly address the question of what legal framework governs such drone strikes. In fact, the Obama administration has never been completely clear about its views on the legal basis for the drone program. But an understanding of the legal framework is necessary to evaluate the new information and the legality of the drone program.
Topic:
Military Strategy, Military Affairs, Counter-terrorism, Al Qaeda, Drones, and Legal Theory
Political Geography:
United States and North America

8. Escape from New York: The Market Impact of SEC Rule 12h-6

Author:
Nuno Fernandes, Uger Lel, and Darius P. Miller
Publication Date:
09-2008
Content Type:
Working Paper
Institution:
Board of Governors of the Federal Reserve System
Abstract:
We examine the stock market impact of SEC Rule 12h-6 which eased the ability of foreign firms to deregister with the SEC and as a result terminate their U.S. disclosure obligations under the 1934 Securities Exchange Act. We document that the market reacted negatively to the ability of firms from weak disclosure and governance countries to more easily opt out of the stringent U.S. reporting and legal environment. Our findings suggest that shareholders of non-U.S firms place significant value on U.S. securities regulations, especially when the home country investor protections are weak.
Topic:
International Trade and Finance, Regulation, Legal Theory, and SEC
Political Geography:
United States and North America