VOLUME 169, ISSUE 3 February 2021

Articles

The Misunderstood Eleventh Amendment

William Baude & Stephen E. Sachs

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same— reading broad principles into its precise words, or treating the written Amendment as merely illustrative of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

Retributive Expungement

Brian M. Murray

Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy. Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry. But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief. Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel. And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy. Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records. But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.

Veil Peeking: The Corporation as a Nexus for Regulation

Mariana Pargendler

Legal and economic scholarship views the provision of asset partitioning (the separation between the assets of the corporation and its shareholders) as the essential economic role of corporate personality. This Article contends that this view is incomplete. First, it identifies the provision of regulatory partitioning (the separation between the legal spheres of the corporation and its shareholders for purposes of the imputation of legal rights and duties) as another fundamental function of the corporate form. Second, it shows that regulatory partitioning is not absolute. In various areas of law and for different purposes, the law “peeks” behind the corporate veil to ascribe legal rights or duties of shareholders to the corporation.

Comments

Noncitizens’ Access to Federal District Courts: the Narrowing of § 1252(b)(9) Post-Jennings

Adam J. Garnick

When can a noncitizen bring her claims directly before a federal district court? The answer is complicated, due in large part to a provision of the Immigration and Nationality Act, codified at 8 U.S.C. § 1252(b)(9). That provision states that if a noncitizen’s claims “arise from” her removal proceedings, they cannot be heard by a federal district court. Instead, those claims would be subject to more limited judicial review in a federal court of appeals only after the noncitizen’s immigration removal proceedings have concluded. If, however, a noncitizen’s claims do not “arise from” removal proceedings, § 1252(b)(9) poses no obstacle to district court jurisdiction. In these instances, noncitizens may have a more immediate opportunity to obtain judicial review and hold the government accountable for its potentially unlawful action. This Comment argues that § 1252(b)(9) should be read narrowly in light of the Supreme Court’s decision in Jennings v. Rodriguez. To effectuate that interpretation, this Comment offers and evaluates several factors and frameworks that district courts can employ when confronted with claims that may implicate § 1252(b)(9).

The Parent Trap: Rebalancing Parallel Enforcement Between Child Protective Services and Law Enforcement

Ryan Charles McEvoy

At the intersection of family and criminal law, the logic of parallel enforcement enables the state, in the form of child protective services and law enforcement, to investigate and seek sanctions for the same underlying conduct in family court and the criminal justice system, respectively. But while that abstract rationale justifies the dual-enforcement regime, there is a different reality on the ground, where the systems frequently borrow from each other, collectively strengthening them. In the context of poverty-related neglect cases, this level of state intervention is often misplaced. At the same time, the government may find its hands tied in far more serious cases of child abuse, in which the nonoffending caregiver may exercise a veto over the prosecution by refusing to cooperate. This Comment rejects certain stereotypes about these caregivers—often mothers—and instead identifies the understandable lack of clarity with respect to the family and criminal systems as a barrier to justice. The Comment uses New York law and procedure as a case study for exploring and disentangling the two systems. First, it proposes reducing the use of criminal sanctions in the neglect context. Second, it suggests the use of formal agreements that clarify the roles of the child protective and criminal systems as a way to gain the cooperation of nonoffending caregivers in the criminal prosecution of child abuse. Finally, it demonstrates how these proposals comply with existing law and may be scaled up across the United States. By rebalancing the enforcement dynamic, the state can more effectively protect child welfare and support family unity.