Emory Law Journal

Volume 67Issue 6

First Impressions and Last Resorts: The Plenary Power Doctrine, the Convention Against Torture, and Credibility Determinations in Removal Proceedings

D. Bruce Janzen, Jr. | 67 Emory L.J. 1235 (2018)

The Convention Against Torture prohibits the exclusion or removal of any foreign national who is likely to be tortured upon returning to his homeland, without exception. In the United States, this absolute rule is the law of the land. Such universal applicability exists nowhere else in American immigration law, and for aliens convicted of serious crimes, its significance is difficult to overstate. But those seeking relief under the Convention are unlikely to receive it. At the center of this troubling state of affairs is the plenary power doctrine, the extra-constitutional foundation upon which American immigration law rests. For the political branches, the doctrine is a wellspring of extensive and unparalleled authority; for the courts, it is a short leash of subdued and toothless deference. After establishing that the extraordinary degree of deference usually required by the plenary power doctrine is unwarranted when protection is sought under the Convention Against Torture, this Comment proposes an alternative standard of review for cases where such relief has been denied as a result of adverse credibility determinations.

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Kicked While They’re Down: Deficiency Judgments and the Great Recession

Ariel Olson | 67 Emory L.J. 1273 (2018)

Although some scholars argue that prohibiting deficiency judgments will lead to increased strategic default by borrowers who still have the financial resources to make their monthly payments, several recent studies discount this hypothesis. The ability of lenders to predict and protect themselves from losses related to borrower default, as well as the increase in predatory lending practices leading unsuspecting borrowers to take out unsustainable loans, necessitate a legislative response. This Comment argues that states have a valid interest in protecting their citizens from financial ruin—and in encouraging recovery over punishment—and should enact legislation prohibiting deficiency judgments for residential borrowers.

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