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Wartime Detention and the Extraterritorial Habeas Corpus Doctrine: Refining the Boumediene Framework in Light of its Goals and Failures

Jose F. Irias

In Boumediene v. Bush, the Supreme Court held that the right to the writ of habeas corpus extended to noncitizen detainees captured abroad and detained at the American naval base in Guantánamo Bay, Cuba. Although Boumediene extended habeas corpus to Guantánamo and formulated a practical extraterritorial habeas corpus framework, the decision may have been a limited victory for civil rights advocates, as it did not resolve the question of the writ’s reach to any other American detention facilities located abroad, including the Bagram Theater Internment Facility in Afghanistan. In Al Maqaleh v. Gates, the D.C. District Court concluded that the petitioners detained at Bagram, like those at Guantánamo, had the right to petition for the writ of habeas corpus, but the D.C. Circuit reversed the lower court on appeal. The D.C. District and Circuit courts came to different conclusions because they took drastically different approaches to the Boumediene framework. This Note argues that the district court came to the right conclusion because its analysis was more faithful to Boumediene, it was more conscious of Boumediene’s separation-of-powers concerns, and, like the Supreme Court, it was appropriately receptive to the possibility that the Executive was attempting to “switch off” the Constitution by strategically detaining suspected enemy combatants in a location unlikely to receive judicial review. Furthermore, the fact that the district and circuit courts were unable to apply the framework consistently suggests that the Boumediene analysis may require refinement or clarification. This paper attempts to provide that.

Staging the Family

Clare Huntington

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to others. They are also central to the deep structure of family law. Drawing on sociological and feminist theory, this Article argues that iterated, everyday performances are performative—that is, they create and then maintain collective understandings of mother, father, child, and family itself. The law plays an integral role in this by imbuing the performances with legal salience to define the categories at the heart of family law. This Article terms this dynamic process “performative family law.”

Aspects of this mutually constitutive relationship between performance and family law are deeply troubling, raising significant concerns for core areas of doctrine, policy, and theory. First, family law’s prevailing approach to defining familial categories is normatively narrowing because legal actors tend to give effect only to traditional, dominant images of the family despite seismic demographic changes in family form. Second, the obscuring effects of the public face of the family often warp the policies designed to address family violence, most notably child sexual abuse. Finally, by ignoring the pressure of performance, scholarly debates over the public-private divide are incomplete and have failed to explain why the concept of family privacy retains such enormous appeal.

In response, this Article proposes a new framework for family law that decenters dominant performances and provides an alternative means to define familial categories and counter family violence. It is not possible or even desirable to eliminate performativity entirely, but it is important to resist its more troubling aspects. A denaturalizing framework promises a more pluralistic approach to the emerging demographic transformation of the family and deeper engagement with the variety of family life today.

The Broken Safety Net: A Study of Earned Income Tax Credit Recipients and a Proposal for Repair

Sara Sternberg Greene

The Earned Income Tax Credit (EITC) is the largest federal antipoverty program in the United States and garners almost universal bipartisan support from politicians, legal scholars, and other commentators. However, assessments of the EITC missed an imperative perspective: that of EITC recipients themselves. Past work relies on largely unconfirmed assumptions about the behaviors and needs of lowincome families. This Article provides a novel assessment of the EITC based on original data obtained directly from 194 EITC recipients through in-depth qualitative interviews. The findings are troubling: They show that while the EITC has important advantages over welfare, which it has largely replaced, it fails as a safety net for low-income families. The problem is that the EITC provides a large windfall to families only once per year, during tax refund season. However, low-income families are particularly vulnerable to financial shocks and instability. Not surprisingly, such events rarely coincide with tax refund season. Without a fix, the EITC leaves many families on the brink of financial collapse. In the years to come, many more low-income families may file for bankruptcy or become homeless. Despite this grim outlook, this Article suggests a straightforward and promising new way to distribute the EITC that maintains the program’s advantages while also providing a more secure safety net for low-income families in times of financial shock and instability.

Assuming Responsibility for Who You Are: The Right to Choose “Immutable” Identity Characteristics

Anthony R. Enriquez

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

Barriers Operating in the Present: A Way to Rethink the Licensing Exception for Teacher Credentialing Examinations

Michele A. Yankson

Notwithstanding Title VII legal remedies, structural barriers have driven many teachers of color out of the workforce in recent decades. Legislative changes in education policy have exacerbated the problem, notably by mandating teacher certification exams. These exams often disproportionately affect teachers of color. Many teachers suing under a Title VII disparate impact claim, however, cannot name states—the actors that create and promulgate the tests—as defendants because courts have interpreted Title VII’s employment relationship requirement to preclude state-defendants. This Note proposes a framework that involves a real-world analysis of the extent to which states control local school governance. The framework shows that courts should allow state-defendants in these Title VII disparate impact claims when the test at issue is a state-mandated teacher certification test.

Padilla v. Kentucky: How Much Advice Is Enough?

Lilia S. Stantcheva

In Padilla v. Kentucky, the Supreme Court declared that defense attorneys must give advice to noncitizen defendants regarding the risk of deportation in order to meet the constitutional standard for effective assistance of counsel. Acknowledging the confusing nature of immigration law, the Court stated that when the law is not straightforward, a criminal defense attorney need do no more than advise a noncitizen client that a conviction may carry a risk of adverse immigration consequences. However, when the deportation consequence is clear, the attorney must give similarly clear advice. Some lower courts have chipped away at Padilla’s holding, allowing vague advice—either from the defense attorney or from other sources—to be deemed effective even in cases where Padilla would seem to require more specific advice. In treating vague defense attorney advice as reasonable, or allowing generic warnings from the court or arresting officers to “cure” a lack of immigration advice from defense attorneys, courts are circumventing Padilla’s demand for specific advice in situations where the consequences of a guilty plea are clear, and thus undermining the underlying concerns of the Supreme Court’s reasoning. Especially in cases where deportation is virtually mandatory, receiving general advice that there is a “risk” of deportation leaves a client with the impression that there is a chance to stay in the country. This impression could have a serious effect on the defendant’s ultimate decision to plead guilty or go to trial. Furthermore, these courts’ approach gives little incentive for defense attorneys to look into the immigration consequences of their clients’ convictions. This Note argues that courts should not allow generalized and unclear advice to meet the standard for effective assistance of counsel when the immigration consequences are actually clear-cut, because doing so undercuts the purpose of the Padilla decision and is unhelpful to noncitizen clients.

Eat, Drink, and Marry: Why Baker v. Nelson Should Have No Impact on Same-Sex Marriage Litigation

Andrew Janet

Due to a now-repealed mandatory jurisdiction statute, in 1972 the Supreme Court was forced to decide the issue of whether there was a constitutional right to same-sex marriage. Their opinion, as stated in the case Baker v. Nelson, was: “The appeal is dismissed for want of a substantial federal question.” That sentence literally comprises the entirety of the summary opinion, and that sentence has obstructed progress in same-sex marriage litigation for decades, including in the last few years. This Note argues that Baker v. Nelson should carry zero precedential weight in 2014. Intervening doctrinal developments should have rendered the case overruled, particularly Zablocki v. Redhail, which conclusively stated a fundamental right to marry under the Due Process Clause. Furthermore, there are significant differences between the factual circumstances of Baker and those of modern cases, particularly the fact that Baker involved a clerk’s administration of a vague statute as opposed to statutes or constitutional provisions that are facially discriminatory. Contemporary same-sex marriage cases should be decided on their merits and not at all influenced by a one-line summary disposition from a completely different era of the marriage equality movement.

The Judiciary as the Leader of the Access-to-Justice Revolution

The Honorable Jonathan Lippman

Brennan Lecture

The subject of my remarks this evening is how the judiciary, conceptually and in practice, should be and is in fact the leader of the access-to-justice revolution that is taking place in our state and in our country. It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today, but all of the players—the providers, the academy, the profession as a whole, and in particular the judiciary—are increasingly and dramatically confronting this crisis and taking action to balance the scales of justice, to guarantee the rights and liberties of all, and to preserve the rule of law.

As I will discuss in detail tonight, New York’s judiciary has taken a leadership role in the access-to-justice reform—securing substantial funding in the judiciary budget for civil legal services; encouraging pro bono work by the bar; asking aspiring lawyers to provide legal assistance to those most in need; harnessing the legal talents of baby boomers and corporate counsel; and exploring novel methods of delivering legal services, including the use of nonlawyers to provide assistance inside and outside the courtroom. The judiciary’s leadership role is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility of the judiciary and its leadership. This approach utilizes all of the financial and programmatic resources available to the judicial branch, along with the great talent and energy of our partners in the legal profession, academia, and legal services communities.

Batson versus Strickland: Evaluating Ineffective Assistance of Counsel Claims Resulting from the Failure to Object to Race-Based Preemptory Challenges

Ashley C. Harrington

This Note evaluates the convergence of the standards articulated in Batson v. Kentucky and those of Strickland v. Washington. Specifically, how can a defendant demonstrate actual prejudice as a result of defense counsel’s failure to challenge the prosecutor’s discriminatory use of peremptory strikes? Lower courts have differed over whether the test should be outcome-based—a demonstration of actual prejudice in the outcome or verdict of the trial—or composition-based—a showing that the result of the jury selection process would have been different. I argue that the latter test is preferable to the former for several reasons. First, the composition-based test will ensure fuller protection of the rights contemplated in Batson and Strickland. Second, the necessary evaluation under the outcome-based test would dramatically shift the Supreme Court’s current colorblind approach in equal protection jurisprudence. Rather than shifting the current equal protection doctrine, the composition-based test allows for incorporation of the doctrine through the use of the diversity rationale. Third, a properly administered outcome-based test would require the exploration of the impact of race and background on the relevant evidence and on perceptions of the criminal justice system, including its principal setting (the courtroom) and primary actors, as contrasted with the much more concrete—if not necessarily simpler—task of determining only whether the composition of the jury itself would have differed.

Police Indemnification

Joanna C. Schwartz

This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty. In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.