This article explores one set of criminal law actors who have been quietly accumulating immigration screening power over the last several years-our nation's inferior criminal courts and the prosecutors who rule them. By centering criminal courts, this article hopes to accomplish three things. First, it hopes to show that delegation is no monolith. Unlike other criminal law partners, who must do the Executive's bidding, a state prosecutor's virtual autonomy over charging decisions enable her to effectively dictate whether a particular noncitizen defendant will meet or avoid the fate of permanent banishment, even if doing so contradicts the express wishes of immigration officials. Second, this article assesses criminal courts as institutions of mercy. Because opportunities for mercy have been nearly written out of the immigration code, criminal courts present a tantalizing prospect for noncitizen defendants. Such an inquiry is especially timely in light of the fact that state courts are now beginning to grapple with the aftermath of Padilla v. Kentucky. This article argues that while criminal courts are well-situated to make equitable interventions, the design and practice of criminal law practice constrain the ability of prosecutors and defense lawyers to identify worthy candidates of mercy. Finally, recognizing that many of the screening challenges facing criminal courts is on account of the de facto nature of their screening power, this article offers some thoughts on the way forward for courts should they begin the process of formally embracing their immigration powers.
In this essay, Professor Brian Clarke examines the Supreme Court's various articulations of the proper standard for determining causation in employment discrimination cases. Professor Clarke then proposes a novel solution that the Court should adopt in its opinion in University of Texas Southwest Medical Center v. Nassar, in order to resolve its past ambiguous formulations and to bring clarity to this area of law.
The regulation of domestic drone use has been the subject of much media attention. In addition to how much domestic drones should be regulated, scholars and policymakers are debating a more complex question, which is who should regulate drones. In this Essay, Margot Kaminski, Executive Director of the Yale Information Society Project, suggests that civilian drone use should be regulated by states rather than the federal government. She argues that because civilian drone use implicates privacy issues that states have previously regulated through statutes and common-law torts, and because there is a tension between privacy and First Amendment concerns that states will navigate better than the federal government, state law should - at least for now - be the primary means of governing civilian drone overflights.
In this Book Review, Professor Glenn H. Reynolds looks to both the past and the future of space law. Drawing from his experience co-authoring one of the first comprehensive legal texts on outer-space law and legal issues, Professor Reynolds provides an expert's evaluation of The Laws of Spaceflight: A Guidebook for New Space Lawyers.
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Founded in 1912, CLR publishes six times per year on a variety of engaging topics in legal scholarship.
The law review is edited and published entirely by students at Berkeley Law.