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In her recent book, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, Professor deGuzman examines what it means for crimes to be so grave that they concern all of humanity. She shows that the concept of gravity remains highly undertheorized, and uncovers the consequences for the regime’s legitimacy of its heavy reliance on this poorly understood idea. She argues that gravity’s ambiguity may at times enable a thin consensus to emerge around decisions, such as the creation of an institution or the definition of a crime, but that, increasingly, it undermines efforts to build a strong and resilient global justice community. Having elucidated the consequences of the regime’s reliance on the ambiguous idea of gravity, Professor deGuzman suggests how gravity could be reconceptualized to take account of global values and goals in the various decision-making contexts in which it is used. For instance, she argues that in delineating global jurisdiction gravity should caste a wide net to capture most crimes that harm human dignity, but that it should have a narrower scope in the context of decisions about when to exercise such jurisdiction. Ultimately, for international criminal law to be effective in preventing human rights violations, it must be seen as legitimate, and such legitimacy requires a better understanding of the foundational concept of gravity. Professor deGuzman’s book opens the discussion on this important question.

You can find more of Professor deGuzman’s work here and more on Temple Law’s Institute for International Law and Public Policy here.

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On July 9, 2020, Chief Justice John Roberts delivered a 7-2 opinion in Trump v. Vance, allowing state prosecutors to subpoena financial records concerning President Trump and his businesses.

Craig Green
Professor of Law

Trump v. Mazars USA: Just months before the presidential election, the Supreme Court declined to enforce subpoenas that could have publicly revealed President Trump’s tax returns and financial conduct. Congressional committees demanded various financial records using their “legislative power,” seeking to investigate the need for possible statutory reform about corruption, terrorism, money laundering, or election interference. One committee also claimed oversight power to investigate executive misconduct. Mazars is the first time that any Supreme Court examined a congressional subpoena for a President’s personal information. The majority created a new “balanced approach” that tried to respect the long history of congressional subpoenas without allowing political warfare through a President’s private records. The Court remanded for lower courts to consider: (i) whether Congress’s asserted legislative purpose requires information about the President, rather than someone else, (ii) whether the subpoena can be narrowed to minimize interbranch conflict, (iii) whether the legislative purpose is adequately identified, and (iv) whether a subpoena’s burdens on the President are excessive. The Court’s flexible multi-part test guarantees that none of Trump’s information will reach Congress before the next election. Yet it offers very limited guidance for deciding future cases, declining even to say how that new test should apply to the subpoenas in this case.

Trump v. Vance: New York’s District Attorney subpoenaed financial records concerning President Trump — including his tax returns since 2011 — so that a grand jury could investigate “multiple individuals whose conduct may have violated state law.” The Supreme Court refused to give Trump “absolute immunity” from that subpoena, holding that the seriousness of a criminal prosecution requires access to all kinds of available evidence. The Court cited a long history of presidents who offered analogous information. Thomas Jefferson agreed to surrender information in various criminal proceedings against Aaron Burr. Richard Nixon had to give tape recordings to the Watergate Special Prosecutor. Presidents Monroe, Grant, Ford, Carter, and Clinton participated in diverse criminal prosecutions by providing testimony or documents. By contrast, Trump argued that his case is different because it concerns a state criminal investigation, not federal law. The Supreme Court, however, specifically denied Trump’s arguments about presidential distraction, stigma, and harassment. The Court held that “no citizen, not even the President, is categorically above the common duty” to comply with criminal subpoenas. Even though Trump can still make specific objections to overbroad requests or undue burdens, he cannot escape from subpoenas altogether by claiming absolute immunity or heightened legal standards. Despite Trump’s defeat in this case, New York’s grand jury subpoena should not yield any lawyer available public information for months or longer, which obviously affects the decision’s political scope and practical importance.

Mark C. Rahdert
Professor of Law

In its two decisions regarding subpoenas of the President’s private financial records, the Supreme Court took a decidedly cautious position. Importantly, it reaffirmed the principle that the presidency is not above the law, and that the President, like every other citizen, is obligated to cooperate with properly conducted criminal law investigations. But at the same time it acknowledged that such an investigation must take into account the unique role of the presidency in our constitutional government by incorporating procedural protections against bad faith, harassment, or undue distraction. The Court also reaffirmed the authority of Congress to use its subpoena powers in order to conduct legislative investigations, but it imposed new limits on that authority when it is directed toward the President himself. The Court seemed much more concerned with the potential for overreach by Congress than it did with the prospect of recalcitrance by the President.

One result of the decisions is that the President and his associated business interests will likely be required eventually to submit records pertaining to his personal finances to prosecutorial authorities in the State of New York, although public disclosure of those materials is unlikely at any time in the near future. Another result is that Congress probably will not be able to obtain most of the President’s financial records that it subpoenaed, except in the extremely unlikely event that it is able to reach a negotiated arrangement with the Trump administration. As the Court observed, such negotiated arrangements have been customary in the past, but as anyone with even passing awareness of the current political situation must know, the President’s refusal to disclose his personal finances is virtually certain to remain absolute. If the Court imagined otherwise, they were engaging in wishful thinking.

For Temple Law reactions to other SCOTUS decisions, click here.

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The High Court building is surrounded by a high, guarded gate and barbed wire, but is open to the public nonetheless.  The High Court serves as the trial court level for significant criminal cases in Kampala, the Ugandan capital.  Lesser criminal offences start off in magistrate courts elsewhere.  I am told the High Court hears appeals as well. Still, given that the population of Kampala is a little larger than Philadelphia, the building struck me as small.  As near as I could find, there were only 6 courtrooms, and only one of them was in session the Thursday morning I visited.  Court began at 11:30, and its docket appeared to contain less than 15 cases.

By 11:00, the participants were in place.  Eleven male defendants sat in the second row of the gallery, brought in handcuffed to one another.  In front of them were two female defendants, one carrying a baby.  All were in street clothes and surrounded by 10 prison guards, dressed in mud-colored uniforms.  This courtroom was far quieter than the typical din of Philadelphia courts.  The family members in the gallery, the defendants, and the court staff were all silent as they waited for the judge to take the bench.  The courtroom was all dark wood, with the crest of Uganda situated above the raised platform for the judge in the front of the room.  The room had no air-conditioning, despite the warm climate, just open doors and windows, and one lowly ceiling fan laboring alongside the sole fluorescent light.

Toward the front, facing the judge sat three attorneys – a man and a woman at one table and another man at the other.  All wore black robes, akin to the types of robes judges wear in the United States, and each had some sort of ornate collar peeking out at the neck of their robe.  In front of them, raised to the level of the judge, sat a member of the court staff on one side, and two “assessors” on the other, all in street clothes, each facing perpendicular to the judge.  When the judge took the bench, he wore a red robe, adorned with the Ugandan crest on his lapels, and he wore a whitish wig, reminiscent of British courts of yesteryear.

The assessors function a bit like an advisory jury, providing an opinion to the High Court judge about their view of the evidence.  Assessors are legally mandated in serious cases.  When the first case was called, eight male defendants shuffled over to the defendant’s box, where they stood throughout the proceeding.  The judge noted that their case had finished the day before but was held in abeyance to give the assessors time to get their opinions together.  It was odd that the Judge claimed that court opened that day at 9:30, when it clearly began two hours later (and was being recorded, such that the time and the misrepresentation would be apparent even to anyone not present).  The assessors said their opinion was unanimous and that it was a joint opinion for all eight defendants, although the judge made clear that they had the prerogative to give individual opinions for each defendant.   One of the assessors read the opinion aloud, going through the law and the facts in detail, witness by witness.  According to the assessors, all eight defendants should be found guilty of the 2015 crimes charged- murder, robbery, and conspiracy.  For the assessors, the alibi “fell short of the truth.”

The lack of emotion in any response was surprising.  One man in the gallery cried silent tears, but the others there were silent.  There was no demonstration of emotion or understanding, resignation or outrage, from the defendants.  I do not know whether any of the victim’s family or police on the case were present.  The lawyers said nothing.

The judge continued the cases for a week to return to render his judgement, and presumably, for sentencing.  While a judge’s decision may be informed by the opinion of the assessors, their submission is not binding.  While there is no mandatory death penalty in Uganda, and none of Uganda’s 133 Death Row inmates been executed in the last 20 years,[1] these eight defendants could potentially be sentenced to death or to life in prison.  As the court officer began to translate what the assessor had read from English to one of Uganda’s local tribal languages, the judge urged haste, telling him to just “give them the gist” of what the assessor said.  The judge then thanked the assessors for their time, and it was on to the next matter.

Sadly, I could only stay for a bit of the next case before heading back to the afternoon session of our program.  A single defendant was moved to stand in the defendant’s box, as the original eight were led out.  The judge asked the lawyers for their summation, and one rose to speak.  This, too, was a murder case, and like the assessor gave, this too, was a dry recitation of evidence, organized witness by witness.  Because the speech was organized that way, and because it was a little hard to hear, it was tough to pick out much of the storyline of the matter.  Sadly, I couldn’t tell whether the lawyer was arguing on behalf of the prosecution or the defense before I had to go, but then again, I wasn’t the audience they needed to persuade.

Two hours of waiting and one hour of court-watching only gave me a glimpse of what criminal courts in Uganda are like.  I saw enough to notice the differences, but not enough to know whether the courts are fair.  With any luck, I’ll get the chance to return one day, to get to know the people of Uganda, and their courts, better.

[1] BBC News, “Uganda Abolishes Mandatory Death Penalty” The East African, August 21, 2019, last accessed 11/21/19 at:  https://www.theeastafrican.co.ke/news/ea/Uganda-abolishes-mandatory-death-penalty/4552908-5243370-rfierez/index.html

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“The rulers of Great Britain have . . . amused the people with the imagination that they possessed a great empire on the west side of the Atlantic. This empire, however, has hitherto existed in imagination only. It has hitherto been, not an empire, but the project of an empire.”
Adam Smith, The Wealth of Nations ¹

“A nation may be said to consist of its territory, its people, and its laws. . . . That portion of the earth’s surface which is owned and inhabited by the people of the United States is well adapted to be the home of one national family, and it is not well adapted for two or more.”
Abraham Lincoln, Annual Message to Congress ²

“I take SPACE to be the central fact to man born in America, from Folsom cave to now. I spell it large because it comes large here. Large, and without mercy.”
Charles Olson, Call Me Ishmael³

“[W]hen one asks another what clan they belong to, the question literally translates to ‘what clay are you made of?’ Many Indigenous knowledge holders talk about the idea that the land does not belong to Native people, but rather Native people belong to the land.”
Susan M. Hill, The Clay We Are Made Of ⁴

Preface:

Edmund Morgan wrote that “government requires make-believe” because it depends on factually plausible fictions, and he was half-right. Human beliefs rooted in fiction are what make governments work, and similarly fictional beliefs prescribe standards to judge whether governments work. In the late eighteenth century, North American governments may have seemed extraordinarily fictional as they twisted, tumbled, rose, and resurfaced from one decade to the next. Yet this book explores a specific category of fiction during that period: territorial links between people and land, between would-be Americans and would-be America. ⁵

Historians have routinely studied how people organized their activities through notions of “the state.” They have less often questioned how individuals composed themselves through “territory,” a term that describes fundamental connections between groups of people and  sections of land. A great many American histories have asked how the United States came to be as a military achievement, a cultural image, a political venue, an ideological event, or a social fact. But only rarely do they examine how the United States came into existence as a matter of territory.

Much like government and the state, territory is built upon fiction as well as fact,
imagination as well as reality, and it is hard to separate social facts from fictions when they are linked in human experience. The term “imagined community” is just a “community” when people feel their integrated existence as something immediate and real. Fictions are fictions because of human creativity, but they work much like facts when humans believe. As one scholar has explained, “[w]e might think of imaginative geographies as fabrications, a word that usefully
combines ‘something fictionalized’ and ‘something made real,’ because they are imaginations given substance.” ⁶

Obvious examples of eighteenth-century territorial fictions might include European maps of North America, which were drawn and redrawn based on legal arguments about which lands were whose. Bright ink was spread onto neatly drawn spaces, but faraway environments were not immediately affected. Trees swayed and creeks bubbled, individuals were born and died, without any recognition that on some distant piece of paper, the ground underfoot had changed colors once again.

Territory sometimes seemed fictional, and so did law and government. But they were not fictional to everyone all of the time. For elite individuals who created territorial law, and for many other people who felt its impact, the law of territory could be as factual as a hurricane. Diplomats, lawyers, and mapmakers fought over territorial claims as though they were matters of life or death. And many people did in fact bleed and die amid territorial struggles, sometimes crossing oceans for the opportunity, sometimes fighting beside their ancestors’ bones.

Migrants, occupants, and investors also structured their lives around controversial opinions about what was “their land” and what was not. And in turn, those decisions affected and were affected by countless people — including women and people of color — who were alleged to have no land claims, or the wrong kind of claims. For some people, territorial fictions thus became brutal realities, even as practical forces influenced which fictions would survive.

It should be evident that complex territorial relationships between people and land can be found in many kinds of historical materials, including religious, cultural, demographic, intellectual, social, and economic sources. Yet this project offers an “unapologetically” legal history of territory, and its focus on legal questions and episodes will primarily involve people who saw territory, law, and government in a factual light rather than a fictional one. The recurrent  question is why. Why did individuals with busy lives and finite energies wrangle over territory and  law? What did they seek to accomplish, how did they think territorial law could help, and to what extent were they right? Legal actors and instruments characteristically pretended to dominate operational power and lived reality, but the strength and weakness of those pretensions should always remain in question. As one historian suggested long ago, it is unacceptable for scholars simply to adopt a “more or less unconscious belief” that “legal doctrine could, should, and did make a difference in the ‘real’ world.” ⁷

Most of the people who lived in North America during this period — like most people all of the time — were not featured in legal materials at all. Conversely, the main actors discussed here — like people in many other contexts — were silently coded by gender, class, race, age, religion, health, wealth, and power. Crucial details about whether legal actors’ territorial dreams influenced or failed to influence extralegal social life and lived experience must remain largely offstage, for the same practical reasons that many nonlegal histories typically downplay legal materials and controversies.

Whether legally oriented or not, too many histories of North America have bypassed analysis of territory altogether, focusing on facts and fictions about “the state” without asking precisely where, or how, such governments were located. For example, events might be described in  British North America,” “New York,” or “Iroquoia,” without giving much attention to what those phrases meant, for whom, or in what sense. Likewise, many territorial spaces and boundaries are routinely presumed to be solid natural facts, as when lands are casually described as “Virginia,” “belonging to Virginia,” or “becoming Virginia.”

One extreme example is George Bancroft’s description of sixteenth-century voyages and a failed Roanoke village under the heading: “England takes possession of the United States.” ⁸ On one hand, the term “takes possession” clearly hides a great deal of violence, fraud, disease, diplomacy, reproduction, and politics. But Bancroft also failed to explain exactly how it was that scattered sailors and failed migrations could cause “England” to take possession of any land, according to whom, and based on what territorial norms. Equally important, of course no one from the sixteenth century would ever live long enough to witness anything called “the United States.” Such mistakes are only possible when a historian’s focus on describing when events occurred is allowed to annihilate comparably complex ideas about where events happen, and how that applicable “where” is determined. By contrast, the narrative of Creating American Land seeks to examine what certain legal designations of territory meant at particular times, whence they derived, and why certain participants did or did not care about them.

For readers who are uneasy with the idea of territorial history, a few simplified visual images might help, with more elaborate verbiage to follow shortly. To describe the relationship between people and land, governments might be imagined as pre-established entities that float over particular patches of land, radiating power down to describe their territorial claims: “This land belongs to that government.” On the other hand, power drawn from territorial lands might shine upward, with beams converging on a government sustained from below: “That government belongs to this land.” Or both might happen at once. From the viewpoint of territorial fictions, such projections might seem just as solid and intelligible as a drawn shape on a map. As historical facts, however, territorial claims were often splotchy and variable, growing stronger and weaker as they scraped, crashed, and merged into one another. ⁹

This book will examine a particular set of North American territorial systems in the late eighteenth century. For some historians, this period is discussed as though thirteen separate, stable, and preestablished “states” united among themselves to form a derivative national government. By contrast, other narratives treat states as subordinate entities that were created by the national government through revolution. Different from both, this project describes aspirationally broad Anglo-American governments and narrow colonies/states as jointly constructed and mutually reliant, with Native American ideas about territory as continually vital influences and effects on that process.

As a legal matter, the United States emerged from the start as a composite system that was built to include states, a nation, and an empire as well. The famous social, economic, and military forces that would imperialize American territory in the nineteenth century — with remarkably systematic and violent dispossession of many Native American groups — always coexisted with, and were framed by, legal ideas about territory that were created and disputed in the eighteenth century.

If historians who analyze other periods and places were to apply similar methods of territorial history, important new perspectives might emerge about processes by which geographic claims have worked to unite, divide, insulate, and intermix groups of people. Even for British North America, for example, territorial conflicts and arrangements looked very different in the seventeenth century than they would later on. New Spain was similar to New France but also different. And historians of “Old” imperial powers would hasten to add that disputed territorial arrangements were hardly unique to North America.

Almost every form of race, ethnicity, and citizenship has been defined through territorial associations. The location and permeability of territorial borders have influenced whether countless individuals are viewed as natives, residents, aliens, or intruders. ¹⁰ And nothing has more consistently inspired collective violence than an asserted need to defend, reclaim, or destroy territorial homelands. Terms like “our land” and “their land” are as prevalent as “us” and “them,” and territorial history as a subfield should study both pairs together. From the United States to the European Union, from Israel/Palestine to Catalonia or even the “Islamic State of Iraq and the Levant,” the importance of territorial claims and disputes would be hard to overstate. Historical analysis of how territorial claims emerged and clashed might shed light on how various territorial groups — Americans, Spaniards, Iroquois — came to be. It might also lay bare mechanisms by which some territorial claims and claimants have succeeded while others have not.

Without a systematic focus on territorial claims, people in certain contexts have taken for granted who they are, where they are from, and how much that matters. Elsewhere, the opposite has occurred. A historian recently wrote that “[t]erritory—an idea that seemed to have fallen into genteel disuse—has intruded into our lives with a renewed and menacing urgency.” But in every circumstance, telling the truth about territorial affiliations is a complicated business. On one hand, for example, some present-day news reports feature sharp-lined maps of territories that are “controlled by” some group or other. That version of reality marks territorial claims based on immediate episodes of bloodshed that at most aspire to produce lasting forms of “control.” Other popular commentators implicitly criticize hasty identities between territory and temporary violence. Instead, they describe invasions, occupations, resistance, and liberations of territory in ways that implicitly allocate “real” ownership based on more visions of more durable law, diplomacy, history, or culture.¹¹

Violence and peace, law and disruption, new and old. Such diverse interpretations of “whose land” and “why” suggest that many kinds of historical materials would be useful in analyzing which land was whose, when, and how — with this book’s legal focus representing only one possibility. The common thread among all kinds of territorial history would be to better understand how groups of people have assembled with and divided from each other by reference to their putative territory. As Caryl Phillips once wrote, “Belonging is a contested state. Home is
a place riddled with vexing questions.” One lesson from the history that follows, and perhaps  from methods of territorial history more broadly, is that territorial crises and confusions cannot be wholly segregated to exotic backcountries, momentary tumults, or a lawless American “west.” Instability, improvisation, and illegality were crucial from the very first moments of American territorial law, operating as long-ignored foundations of the United States’ constitutional homeland. ¹²

¹ Adam Smith, The Wealth of Nations (New York 1902) vol. 3, p. 402.
² “December 1, 1862—Annual Message to Congress,” Abraham Lincoln Complete Works (eds. John G. Nicolay & John Hay) 1908) vol. 2, p. 268.
³ Charles Olson, Call Me Ishmael (Johns Hopkins [1947] 1997)
⁴ Susan M. Hill, The Clay We Are Made Of: Haudenosaunee Land Tenure on the Grand River (U Manitoba 2017) p.5.
⁵ Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 13 (1988)
⁶ Derek Gregory, The Colonial Present (2004) p. 17. Cf. Wallace Stevens, The Necessary Angel:Essays on Reality and the Imagination 6, 28, 33 (1942) (“[Our obsession about the truth] is not only that the imagination adheres to reality, but, also, that reality adheres to the imagination and that the interdependence is essential.”).
⁷ Hendrik Hartog, Man and Wife in America: A History 2 (Harvard 2000); Hendrik Hartog, Public Property and Private Power: The Corporation of New York in American Law, 1730-1870, at 6-8 (UNC 1983).
⁸ See Gordon S. Wood, “The Relevance and Irrelevance of American Colonial History,” in Imagined Histories: American Historians Interpret the Past (eds, Anthony Molho & Gordon S.
Wood 1998) p. 147.
⁹ Although “government” is the primary reference point for this dissertation, similar ideas about collective territory could also be based upon religion, ethnicity, or other social ties.
¹⁰ Cf. Daniel T. Rodgers “Cultures in Motion: An Introduction,” in Cultures in Motion (eds. Daniel T. Rodgers, Bhavani Raman, & Helmut Reimitz) (Princeton 2014); Helmut Reimitz, “From Cultures to Cultural Practices and Back Again,” in Cultures in Motion; Michael D. Jackson, At Home in the World (Duke 1995) (“Ours is a habitus of walls and enclosures, or well-marked exits and entrances, paths and roads. This material habitus determines a particular sensibility which sees boundaries as a precondition of meaning. . . . For us, security is a function of the substantiality of the ideas and places we construct.”), quoted in Nicholas Blomley, “Cuts, Flows, and the Geographies of Property,” Law, Culture and the Humanities Vol. 7(2), p. 203..
¹¹ Charles S. Maier, Once Within Borders: Territories of Power, Wealth, and Belonging since 1500, at pp. 1, 18 (Harvard 2016). Cf. Edward Said, Culture and Imperialism (1993) 78 (“To think about distant places, to colonize them, to populate or depopulate them: all of this occurs on, about, or because of land. . . . Imperialism and the culture associated with it affirm both the primacy of geography and an ideology about control of territory. The geographical sense makes projections — imaginative, cartographic, military, economic, historical, or in a general sense cultural.”); Violent Geographies: Fear, Terror, and Political Violence (eds. Derek Gregory & Alan Pred 2007)
¹² Caryl Phillips, New World Order: Essays 6 (Vintage 2001); see Sean Hawkins & Philip D. Morgan, “Blacks and the British Empire: An Introduction,” in Black Experience & the Empire 1,33 (2004).

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Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.

We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.

We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.

Download the Paper from SSRN

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This article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom.

The reforms assume — as does the Wills Act itself — a fully-formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules are a means for furthering self-determined ends. This conventionally-rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms’ boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom.

Download the Paper From SSRN

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Whether we should admire and respect immigrants is not what the immigration controversy is really about. Given that we should admire and respect immigrants, the question at the heart of the controversy is, how many should we take? And specifically, should we accept everyone in the world who wants to come to the United States to live and work? Or alternatively, should we try to enforce a numerical limit on how many immigrants we accept every year?

That is a binary choice, either no limits, or an enforced limit. And it is a hard choice, especially for our elected officials, because advocating no limits does not sound like a path to election or re-election. But trying to enforce a numerical limit presents numerous administrative challenges, and requires a willingness to turn away people who are neither criminals nor national security threats, who just want to work hard for a better life for themselves and their families, and who remind us of our own ancestors. And if they come anyway in violation of our numerical limit, we have to try to remove them to defend the numerical limit. Can we do that?

Many lawyers like to think they can argue both sides of any controversy, and I am no exception. I can make the historical, philosophical, libertarian, economic, and religious arguments for open borders. But I can also, and do, defend the decision of Congress to enforce a numerical limit on immigration.

Although it has become a cliché to say that everyone agrees that our immigration system is broken, I do not agree with that. I believe that what is broken is our willingness to make the hard choice between simply allowing unlimited immigration, as we did for the first century of the republic, or alternatively enforcing a numerical limit on immigration, with all the attendant difficulty, complexity, and expense that entails.

It is perhaps understandable that many citizens including elected officials keep looking for a third, easier choice. Open borders without a limit on immigration would strike many citizens as dangerous, and many politicians as political suicide. But the alternative of having to turn away and remove would-be immigrants, who remind us of our own ancestors, in order to enforce a numerical limitation on immigration strikes many citizens as equally unappealing.

How about this for a third choice? We can pretend we have a numerical limit, keep it on the books, but not enforce it. And whenever that policy choice produces a large number of illegal immigrants, we can just enact a big amnesty or legalization. How does that sound? What message would such a policy send to those considering legal or illegal immigration to the United States?

If we do nothing at all to reform our immigration system, we are left with the most generous legal immigration system in the world, issuing every year more green cards for legal permanent immigrants with a clear path to full citizenship than all the rest of the nations of the world combined. In testimony to the Judiciary Committee of the U.S. Senate in 2013, I described that immigration system as worthy of our nation of immigrants. But it needs to be defended and enforced to deter excess illegal immigration, unless we prefer the alternative of unlimited immigration. And Congress can adjust the numerical limit to be enforced at any time as long as we are committed to enforcing it.

From the start of his administration in 2009, President Obama has advocated and supported a set of changes to U.S. statutory immigration law, including legalization and a pathway to citizenship for most illegal aliens in the United States. He has labeled this set of changes to U.S. immigration law as “comprehensive immigration reform.”

Because President Obama was unable to persuade Congress to enact the package of changes to U.S. immigration law that he advocated, he decided to use unilateral executive orders to circumvent Congress and advance some of those changes. On June 15, 2012, less than four months before a presidential election, President Obama announced Deferred Action for Childhood Arrivals (DACA) to provide both deferred action and work authorization for all illegal aliens who came to the United States before age sixteen. DACA was implemented through memoranda from Secretary of Homeland Security Janet Napolitano to her subordinates, and has, as of 2015, formalized the status of approximately seven hundred thousand beneficiaries.

On November 20, 2014, two weeks after congressional elections in which Republicans won control of the U.S. Senate from Democrats and widened their majority in the U.S. House of Representatives, President Obama announced Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) to provide deferred action and work authorization to an estimated five million additional illegal aliens. A federal district court injunction has prevented DAPA from being implemented. The injunction has been upheld by the U.S. Court of Appeals for the Fifth Circuit. The Obama Administration has announced that it will not further appeal the injunction and will proceed to litigation on the merits of the challenge to DAPA by Texas and twenty-five other states.

Anyone who follows the news knows that the world is awash in uninvited migrants. Australia and Western Europe, even Israel, are trying to cope, just like the United States, with a wave of migration. Some migrants qualify as true refugees under international law. But many, though fleeing lives of hardship, do not. And some are simply seeking a better life than the one they left behind. In the United States we have a simple solution to the paradox of unauthorized migration. We let our elected representatives in Congress decide how many and which of the migrants are allowed to stay, and also what to do with those not allowed to stay. This Article will discuss why President Obama’s latest deferred action executive order, DAPA, is unwise and bad policy, the unintended tax consequences of such an order, and why the order is lacking in legal authority and unconstitutional.

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In recent years, legal writing professors and law librarians have given much scholarly attention to questions of pedagogy and training in a world of online legal research. One question that poses a serious and ongoing challenge is that of the generational divide between those in law practice, who grew up and learned research in an entirely bibliographic-based world, and those newly entering the profession, who have grown up in an entirely online environment. When it comes to legal research, does audience matter?

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