VOLUME 164, ISSUE 1 December 2015

Articles

A National Study of Access to Counsel in Immigration Court

Ingrid V. Eagly & Steven Shafer

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.

Toward a Pigouvian State

Jonathan S. Masur & Eric A. Posner

Most economists believe that the government should impose Pigouvian taxes on firms that produce negative externalities like pollution, yet regulatory agencies hardly ever use their authority to create Pigouvian taxes. Instead, they issue command‐and‐control regulations. Our major point is that, contrary to the conventional wisdom, regulators typically have legal authority to create Pigouvian taxes—they just do not use it. While regulators may hesitate to impose Pigouvian taxes for a range of political and symbolic reasons, we argue that these reasons do not justify this massive failure of regulatory efficiency. It is time for the regulatory state to take a Pigouvian turn.

Antitrust in Zero-Price Markets: Foundations

John M. Newman

“Zero‐price markets,” wherein firms set the price of their goods or services at $0, have exploded in quantity and variety. Creative content, software, search functions, social media platforms, mobile applications, travel booking, navigation and mapping systems, and myriad other goods and services are now widely distributed at zero prices. But despite the exponential increase in the volume of zero‐price products being consumed, antitrust institutions and analysts have failed to provide an adequate response to markets without prices.

Modern antitrust law is firmly grounded in neoclassical economics, which is in turn centered on price theory. Steeped in price theory, preeminent antitrust theorists have urged that without prices there can be no markets, and consequently no market power. This heavy methodological dependence on positive prices has led antitrust courts and enforcement agencies to overlook potentially massive welfare harms. Unfortunately, recent empirical research confirms that such harms have already occurred.

These failures to conceive of zero‐price markets as antitrust “markets” indicate how fundamentally zero prices challenge traditional theories and analytical frameworks. This Article establishes a novel taxonomy of customer‐facing costs, distinguishing “market‐signaling” from “non‐market‐signaling” costs. Crucially, it demonstrates that market‐signaling costs are present in many zero‐price contexts. The absence of positive prices thus does not foreclose antitrust scrutiny; “trade,” for purposes of the Sherman and Clayton Acts, encompasses zero‐price transactions. To continue ignoring welfare harms in these markets would be both unjust and inefficient. The Article concludes by identifying antitrust law's proper role within—and stance toward—zero‐price markets.

Time to Drop the Infield Fly Rule and End a Common Law Anomaly

Andrew J. Guilford & Joel Mallord

I begin with a hypothetical. It's the seventh game of the World Series at Wrigley Field, Mariners vs. Cubs. The Mariners lead one to zero in the bottom of the ninth, but the Cubs are threatening with no outs and the bases loaded. From the hopeful Chicago crowd there rises a lusty yell, for the team's star batter is advancing to the bat. The pitcher throws a nasty rising fastball, and the batter barely makes contact. It's a high pop‐up to the second baseman, who backpedals onto the right field grass. He settles under the ball and shields his eyes from the blazing sun. What happens next at this key moment in Cubs history, with fans everywhere on the edge of their seats in anticipation? As all baseball fans know, an old man in a blue coat will run out, arms waving, and the play is over. The Cubs are charged with an automatic out and the bases remain loaded. This is the result of the Infield Fly Rule, an outdated rule of baseball whose time must end.

The development of the Infield Fly Rule was explored forty years ago in an Aside, The Common Law Origins of the Infield Fly Rule, in the University of Pennsylvania Law Review. The Aside describes how the Infield Fly Rule developed by accretion—like the common law—at a time when people hoped to preserve a kinder, gentler America. It describes how people considered it uncivil for an infielder to purposely drop a ball to turn a double play on runners taught not to advance until the ball is caught. The result was that the audacious, risky possibilities of infield flies were eliminated by protectionist rulemaking. This antiquated rule, reflecting the gentility of ages past, has no place in the rude coarseness of the twenty‐first century, an era that embraces both risk and subterfuge. Baseball rulemakers should correct this error of common law accretion by dropping the Infield Fly Rule.

Comments

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

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.

Special Domestic Violence Criminal Jurisdiction for Indian Tribes: Inherent Tribal Sovereignty versus Defendants' Complete Constitutional Rights

Margaret H. Zhang

Special domestic violence criminal jurisdiction for Indian tribes took effect nationally on March 7, 2015, and it was a historic moment for the tribes. Ever since the Supreme Court's 1978 decision in Oliphant v. Suquamish Indian Tribe, tribes had been powerless to exercise criminal jurisdiction over non‐Indian defendants. Because the Court held that “Indian tribes do not have inherent jurisdiction to try and punish non‐Indians,” an unfortunate gap in enforcement resulted: for crimes committed in Indian country, where states' criminal jurisdiction is limited and where the federal government lacks the resources to prosecute crimes effectively, non‐Indian offenders regularly escaped prosecution. This problem was particularly disturbing in the context of domestic violence and related crimes. For example, sixty‐seven percent of the sexual abuse and related offenses committed in Indian country and charged in fiscal years 2005–2009 were left unprosecuted by the federal government.

Enter VAWA 2013 and special domestic violence criminal jurisdiction for Indian tribes. Recognizing that “much of the violence against Indian women is perpetrated by non‐Indian men” who “regularly go unpunished,” Congress intended special domestic violence criminal jurisdiction to fill the prosecutorial enforcement gap for domestic violence offenses. Codified at 13 U.S.C. § 1304, the new provisions recognize tribes' “inherent power . . . to exercise special domestic violence criminal jurisdiction over all persons”—including non‐Indians.

Although tribes and their advocates have celebrated VAWA 2013's partial override of the Oliphant decision, special domestic violence criminal jurisdiction has yet to withstand constitutional scrutiny at the Supreme Court. In the debates before VAWA 2013's passage, tribal jurisdiction over non‐Indians sparked controversy because legislators and commentators understood that non‐Indian defendants prosecuted and tried in tribal court would not receive the full protection of the federal Constitution. This constitutional question—whether the Constitution applies in full force in prosecutions brought under special domestic violence criminal jurisdiction—turns on whether the expanded tribal jurisdiction is an exercise of “inherent” tribal sovereignty or delegated federal authority. If the new jurisdiction is an exercise of inherent tribal sovereignty, then tribes are not obligated to provide non‐Indian defendants with the full protection of the federal Constitution. But if the new jurisdiction is delegated federal authority, then non‐Indian defendants would be entitled to the full panoply of rights under the federal Constitution—including, potentially, the right to an Article III judge appointed by the President and confirmed by the Senate under Article II of the Constitution. The bounds of inherent tribal sovereignty could thus determine whether special domestic violence criminal jurisdiction lives or dies.

This Comment begins in Part I by outlining the history of tribal criminal jurisdiction in Indian country, with a focus on the law most relevant to analyzing the bounds of tribes' inherent sovereignty to adjudicate crimes over non‐Indians. Part II explains VAWA 2013's special domestic violence criminal jurisdiction in more detail and summarizes how it has been implemented since the statute's enactment. Part III discusses the arguments for and against finding that tribes have inherent tribal sovereignty to exercise special domestic violence criminal jurisdiction, and why the outcome matters for both tribes and non‐Indian defendants. Part IV takes an aside to note the lurking influence of the congressional plenary power doctrine, which gives Congress broad authority to legislate in the realm of Indian affairs. And Part V outlines how courts' ultimate rulings (and their underlying reasoning) would affect special domestic violence criminal jurisdiction's future. The Conclusion addresses the underlying questions: What are the bounds of tribes' inherent sovereignty? From what does that sovereignty derive? The answer will affect not just special domestic violence criminal jurisdiction under VAWA 2013, but also possible future expansions of tribal criminal jurisdiction by Congress.