Emory Law Journal

Volume 68Issue 1
Articles

The President’s Immigration Courts

Catherine Y. Kim | 68 Emory L.J. 1 (2018)

Although scholars have long observed the expansion of presidential control over federal agencies, the conventional narrative has assumed that the White House and its political appointees generally have refrained from interfering in one form of administrative decision-making—that of agency adjudications. The Trump Administration has cast doubt on that assumption, deploying a series of reforms designed to fundamentally reshape adjudication in our nation’s immigration courts. This Article evaluates these emerging tools of political influence and develops a normative framework for assessing the legitimacy of presidential control over agency adjudications more generally.

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Digital Searches, the Fourth Amendment, and the Magistrates’ Revolt

Emily Berman | 68 Emory L.J. 49 (2018)

Searches of electronically stored information present a Fourth Amendment challenge because it is often impossible for investigators to identify and collect, at the time a warrant is executed, only the specific data whose seizure is authorized. Instead, the government must seize the entire storage medium and extract responsive information later, thereby ensuring that they will encounter vast amounts of non-responsive (and often intensely personal) information contained on the device. In response, some magistrate judges have begun issuing warrants that place limits on how those searches may be carried out—a development that some have referred to as a “magistrates’ revolt.” This Article argues that rather than [opensmartdoubleqoute]revolt,” these judges simply adopted a time-honored privacy-protection tool from the foreign intelligence collection context—minimization—that will allow them to draw on lessons learned in that context to safeguard Fourth Amendment rights during digital searches.

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Comments

Discretion Versus Supersession: Calibrating the power Balance Between Local Prosecutors and State Officials

Tyler Q. Yeargain | 68 Emory L.J. 95 (2018)

In the last few years, increasing public support for criminal justice reform has resulted in the election of local prosecutors sympathetic to the movement. However, as some case studies —like Aramis Ayala in Orlando and Robert Shuler Smith in Jackson—have demonstrated, reform-minded local prosecutors may face fierce resistance from their state’s more traditional “tough-on-crime” legal establishment. This Comment surveys and discusses supersession, one of the underdiscussed methods that the legal establishment can use to curtail local prosecutors’ discretion, and then advocates for the adoption of a uniform supersession standard that respects prosecutorial discretion and prevents illegitimate abuses of power.

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“What’s a Sundial in the Shade?”: Brain Waste Among Refugee Professionals Who Are Denied Meaningful Opportunity for Credential Recognition

Shanique C. Campbell | 68 Emory L.J. 139 (2018)

Article 19 of the 1951 Refugee Convention legally obligates the U.S. government to respect and uphold refugees’ legal right to practice liberal professions. Yet, images of refugee professionals working underpaid jobs are becoming more common in news and other areas of daily American life such that your Uber driver could be a human rights attorney and your school’s janitor might be a civil engineer. The freedom of refugees to practice their professions is severely undermined by a panoply of state and federal laws and policies, which make it difficult for refugee professionals to re-credential. To de facto protect these refugees’ right of professional practice, this Comment proposes a national standard of treatment and credential recognition regulations that will give refugees a more meaningful opportunity for re-credentialing.

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Seeking Warrants for Unknown Locations: The Mismatch Between Digital Pegs and Territorial Holes

Diana Benton | 68 Emory L.J. 183 (2018)

The Dark Net—a virtual space for criminal activity unmoored from the traditional territorial boundaries that define courts’ authority—creates a jurisdictional dilemma. Law enforcement cannot locate anonymous Dark Net users without hacking into their computers, which requires a search warrant. Yet police cannot apply for a warrant without first knowing the computer’s location, because a judge does not have the authority to issue a warrant that will be executed outside her jurisdiction. A judge cannot determine whether she has jurisdiction to issue a warrant when the location to be searched is undiscoverable without the very warrant itself. This Comment analyzes Fourth Amendment implications of searching unknown locations and recommends expanding statutory authority and procedural mechanisms to allow courts to issue warrants when the location to be searched is unknowable. This would further the constitutional preference for warrants without violating constitutional principles governing territorial limitations on courts’ jurisdiction.

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