Current Print Issue

Vol. 164, Issue 1

  December 2015

Featured Article

A National Study of Access to Counsel in Immigration Court

Ingrid V. Eagly & Steven Shafer
164 U. Pa. L. Rev. 1 (2015).

Although immigrants have a right to be represented by counsel in immigration court, it has long been the case that the government has no obligation to provide an attorney for those who are unable to afford one. Recently, however, a broad coalition of public figures, scholars, advocates, courts, and philanthropic foundations have begun to push for the establishment of a public defender system for poor immigrants facing deportation. Yet the national debate about appointing defense counsel for immigrants has proceeded with limited information regarding how many immigrants currently obtain attorneys and the efficacy and efficiency of such representation.

This Article presents the results of the first national study of access to counsel in United States immigration courts. Drawing on data from over 1.2 million deportation cases decided between 2007 and 2012, we find that only 37% of all immigrants, and a mere 14% of detained immigrants, secured representation. Only 2% of immigrants obtained pro bono representation from nonprofit organizations, law school clinics, or large law firm volunteer programs. Barriers to representation were particularly severe in immigration courts located in rural areas and small cities, where almost one‐third of detained cases were adjudicated. Moreover, we find that immigrants with attorneys fared far better: among similarly situated removal respondents, the odds were fifteen times greater that immigrants with representation, as compared to those without, sought relief, and five‐and‐a‐half times greater that they obtained relief from removal. In addition, we show that involvement of counsel was associated with certain gains in court efficiency: represented respondents brought fewer unmeritorious claims, were more likely to be released from custody, and, once released, were more likely to appear at their future deportation hearings. This research provides an essential data‐driven understanding of immigration representation that should inform discussions of expanding access to counsel.

Featured Comment

The Limitations of Tradition: How Modern Choice of Law Doctrine Can Help Courts Resolve Conflicts within the New York Convention and the Federal Arbitration Act

Alexander Sevan Bedrosyan
164 U. Pa. L. Rev. 207 (2015).

The difficulties faced by parties trying to enforce rights secured through international arbitration stem from the fact that countries have enacted different barriers to the enforcement of international arbitral awards. These cross‐national differences in barriers persist today, despite the fact that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York Convention” or “Convention”) attempted to eliminate such differences. Through the New York Convention, the international community sought to limit and standardize the grounds on which countries could refuse to enforce arbitral awards.

The lack of international uniformity does not arise because countries that have ratified the New York Convention are intentionally violating the treaty; rather, the problem lies within the treaty itself—the New York Convention contains a choice of law problem. It establishes that two sets of laws will govern actions to enforce international arbitration awards: its own provisions and the national laws of state‐parties. National courts have adopted traditional choice of law methods in order to choose whether they will use their own national laws or the treaty provisions to decide a particular issue. However, this divergence has brought to enforcement actions the same two problems it has brought to other more conventional civil litigations—absurd and nonuniform outcomes. The lack of uniformity is particularly vexing, as the New York Convention's very purpose was to ensure the uniform treatment of a given arbitration award across countries.

This Comment proposes that just as courts have abandoned the traditional choice of law approach in conventional litigation, they should also abandon it in arbitral enforcement litigation. Courts should instead use modern choice of law doctrine. Employing modern choice of law doctrine to enforcement actions would produce sensible results and bring uniformity to the enforcement of international arbitral awards. This Comment focuses on the United States and the Federal Arbitration Act as a case study. It suggests that applying modern American choice of law doctrine to the Federal Arbitration Act, mainly by limiting the application of the statute of limitations contained in section 207 of the Act, would help the United States better implement the New York Convention.

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 Last updated: November 16, 2015

Case Note

Susan B. Anthony List v. Driehaus and the (Bleak) Future of Statutes that Ban False Statements in Political Campaigns

Margaret H. Zhang
164 U. Pa. L. Rev. 19 (2015).

Political campaigns can get ugly. Today's political candidates must be prepared for mudslinging targeted not just at their professional lives, but also at their private lives, appearance, genealogy, religion, and countless other minutiae. The media has intensified its coverage of negative political advertising in recent years, and this trend has prompted calls for more regulation to deter false statements in political advertising.

Some states have responded. Currently, at least eighteen states have statutes on the books that punish false political statements with civil or criminal penalties. But recent litigation has cast doubt on the statutes' validity: Washington's statute was held unconstitutional by an intermediate Washington court in 2005, and Susan B. Anthony List v. Driehaus (handed down by the Supreme Court in 2014) paved the way for invalidation of Minnesota's and Ohio's statutes.

With the 2016 presidential election on the horizon, will other states' statutes fall in the wake of Susan B. Anthony List? Given the Supreme Court's other recent speech jurisprudence, the answer is probably yes.


What Does Voluntary Tax Compliance Mean?: A Government Perspective

J. T. Manhire
164 U. Pa. L. Rev. Online 11 (2015).

If government statistics are correct, almost all of us engage in what the Internal Revenue Service (IRS) calls “voluntary tax compliance.” One of the IRS's principle goals is to maximize this voluntary compliance. For example, the IRS has an official policy stating that civil tax penalties are primarily designed and imposed against taxpayers to encourage voluntary compliance. Closing the “tax gap,” the difference between the tax properly due and the amount the IRS receives through voluntary compliance, is a persistent problem for the IRS. In most congressional reports, the IRS emphasizes voluntary taxpayer compliance as a foundational principle of the U.S. tax system.

Yet, most taxpayers do not believe they have a choice when it comes to filing and paying their taxes. There is often a great deal of confusion and consternation when taxpayers discover that the IRS refers to this annual filing ritual as “voluntary.” What does voluntary compliance mean? Does it mean taxpayers can volunteer to file returns and pay taxes, as one might volunteer to make a charitable donation? Does it mean taxpayers do not have to comply with the tax laws if they do not feel like it? How can it be a federal crime to not file or pay taxes if compliance is voluntary? This is a very real problem for taxpayers, as demonstrated by U.S. Tax Court cases litigating taxpayer confusion over the meaning of voluntary compliance. Additionally, at times the Tax Court has taken a very stern position on noncompliance, to the detriment of confused taxpayers.

To the common ear, the term “voluntary compliance” may seem an odd, even Pickwickian, turn of phrase. It implies that compliance with the federal tax laws is voluntary. The Tax Court, however, has labeled such an interpretation as “arrogant sophistry.” Taxpayers have a legal obligation to comply with the tax laws, just as they are obligated to comply with all rules that carry the force and effect of law. Penal sections of the tax code reinforce this obligation. Therefore, the government's position is that voluntary compliance means that taxpayers behave in a way required by law, but without direct compulsion from the IRS.

Still, this definition does not comport with the current use and understanding of the word “voluntary.” The modern connotation implies an act done because one wants to do it, not because one has to. A voluntary act is an unrestricted act in the absence of a pre‐existing obligation. Since taxpayers have a legal obligation to act in accordance with the internal revenue laws, tax compliance is anything but voluntary in this sense.

This Essay offers a government perspective as to why the IRS uses this perplexing term. After investigating (and dismissing) a possible literal defense, the Essay surveys the IRS's history to see why voluntary compliance is such a critical part of the U.S. tax system. The Essay then recommends changing the term from voluntary to cooperative compliance to retain the government's meaning while lessening taxpayer confusion.


The “Equity of the Statute” and Copyright Law: Three Critiques

Michael A. Carrier
163 U. Pa. L. Rev. Online 377 (2015).
Responding to Shyamkrishna Balganesh & Gideon Parchomovsky, Equity's Unstated Domain: The Role of Equity in Shaping Copyright Law

In their ambitious Article, Shyam Balganesh and Gideon Parchomovsky seek to make sense of the Supreme Court's recent copyright jurisprudence. The authors articulate an “equity of the statute” that allows courts “to extend or restrict the otherwise clear words of a statute to give effect to the statute's ‘ratio or purpose.’” They also find, in some tension, that copyright law is indeterminate, as “a close reading of the [Copyright Act] reveals hardly any guidance” on how to apply it.

Whether copyright law is clear or indeterminate, the authors conclude that “the Court's stated objective [i]s to bring the substantive content of copyright doctrine in line with its own conception of copyright's principal values and ideals.” The authors contend that the “equity of the statute” allows the Court to effectuate copyright's “primary purpose,” which is to balance the “utilitarian ideal of encouraging creativity” with “the public's need for access.”

The authors lament that “constant technological change” has “required copyright law to update the applicability of its core goals and ideals to new situations” but that “[t]he formal content of its statutory directives has routinely proven to be outdated, and legislative reforms have often proven to be an inadequate means of redress.” They are heartened, however, that the Court “has effectively determined the equity of the copyright statute's substantive content,” which has “protect[ed] the normative integrity of our copyright system.” Finally, the authors find that the Court applies “adjectival equity” in “preserv[ing]” its “flexibility for the future.”

In this response, I offer three critiques of the Article. First, the notion of an “equity of the statute” designed to promote copyright's incentives/access paradigm does not provide the most persuasive explanation of the cases. Second, the authors' “adjectival equity” cases are not best explained by preserving judicial flexibility. Third, two of the three cases involving technology do not present a “successful ‘updat[ing]’” of copyright doctrine.