Issues

In criminal law, an individual must be deemed competent to stand trial, yet our immigration courts routinely order the deportation of incompetent noncitizens. A removal proceeding against a noncitizen—where an outcome of deportation often risks life-threatening harm—continues apace even if the noncitizen has been deemed incompetent by the immigration judge. In place of halting proceedings, the immigration judge imposes “safeguards” pursuant to a provision of the immigration code that neither defines nor explains the term. In practice, judges’ application of the term “safeguards” is often absurd. The implications of continuing a proceeding against a noncitizen with a disability affecting competency are significant. Unlike criminal defendants, noncitizens facing removal carry the burden for much of the proceeding, so their participation and understanding is critical to having a fair shot. Yet noncitizens are routinely ordered deported even though they do not understand or meaningfully participate in removal proceedings.

By unifying a small but rich body of literature from immigration, disability, and criminal competency scholarship and cases, this Article closes a gap in understanding how the machinations of the immigration legal system result in the removal of noncitizens whose disabilities render them incompetent. It takes stock of the immigration agency’s failure to answer foundational questions about how its competency framework should work. This shortcoming results in what I call “safeguards theater,” in which the immigration courts push proceedings forward despite clear indications the noncitizen did not understand.

In place of the current practice, this Article instead argues for the application of disability law. Federal disability law guarantees a person with a disability meaningful access to immigration court, so a removal proceeding after a competency determination must be accessible to the noncitizen. This Article’s proposal would curtail the immigration courts’ reliance on safeguards theater and allow noncitizens meaningful judicial review of competency issues. Finally, the Article questions whether a person with a disability affecting competency should undergo removal proceedings at all.

Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that rationalizes and justifies our current tax exemption regime. Rather than conceiving of exemptions as subsidies or individual deviations from a normative base explainable by ordinary politics, this Article argues that exemptions are best understood as mapping the “limits” of tax. These limits are neither arbitrary nor merely a collection of individual subsidies to favored activities; rather, they are best seen as reflective of deeper collective sociopolitical judgments about the scope of the State and the public sphere.

This Article constructs the “Limits Theory” by explaining and justifying the three most significant exemption regimes: those exempting the nuclear family, other sovereigns, and charities. The nuclear family perhaps occupies the center of the private sphere; its location demands exemption due to its intimate and private—not public—character. Notions of comity and federalism buttress the exception for other sovereigns, cautioning against the taxation of a public sphere by other public spheres. Lastly, charities’ unique public–private hybrid character, oriented towards purposes aligned with the public sphere yet operated as private autonomous associations, justifies charities’ exclusion from the ordinary limits of taxation—limits that cover ordinary for-profit organizations that strive to both do good and do well. The collective sociopolitical judgments grounding these exemptions are neither novel nor idiosyncratic; in fact, they are traceable to the work of political theorists of all stripes seeking to define the public sphere, from Rawls’s liberalism to Nozick’s libertarianism and communitarianism à la Walzer or MacIntyre.

In developing a theoretical account, this Article does more than construct a coherent framework for thinking about tax exemptions more generally. Visualizing exemptions as limits rather than subsidies also allows us to explain and justify key common features of the exemptions—for example, the law’s insistence that the commercial character of an activity vitiates exemption across different exemption regimes, foreclosing the possibility of for-profit charities and supporting the taxation of commercial enterprises run by other states. But perhaps most importantly, the theory illuminates the direction for further examination and refinement of the law. It renders exemptions intelligible and coherent at a more granular level. It offers a common and normatively rich framework for scholars and policymakers to engage in more fruitful debates about old and new issues regarding the proper scope of current exemption regimes—for example, on whether the PGA Tour and the Saudi sovereign wealth fund deserve to lose their tax exemptions upon completion of their controversial combination.

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. Statements that courts have deemed too ambiguous (e.g., “I’ll be honest with you, I’m scared to say anything without talking to a lawyer.”) are perceived by a large majority of survey respondents as invoking the right to counsel. With respect to the right to silence, the survey results suggest that people overwhelmingly believe that remaining silent for several hours constitutes invocation of the right to silence and expect that their silence cannot be used against them—including in situations where, in fact, it can be. Across an array of fact patterns and demographic subgroups, respondents consistently set the bar for invoking Fifth Amendment rights lower than courts.

The stark disconnect between what the public takes as sufficient to invoke these rights and what courts hold as sufficient suggests that the rights to counsel and silence are largely inaccessible to ordinary people. Notably, standard Miranda warnings do not include instructions regarding how one must speak in order to invoke those rights. We conclude that when courts set the threshold for invocation above where the average citizen believes it to be, they effectively place key procedural rights out of reach.

The truth of disclosures by public companies is policed by both private plaintiffs and the Securities and Exchange Commission (SEC). The courts and many commentators have viewed the SEC as a more responsible enforcer than private litigants. Entrepreneurial enforcers with a profit motive have an incentive to advance questionable legal theories to expand the reach of Rule 10b-5, the primary federal prohibition of securities fraud. In contrast, the conventional view is that a public enforcer will bring straightforward cases against public companies. This Article argues that this perception is dated, and that the SEC has become more entrepreneurial in its enforcement relating to material misstatements by issuers. The agency now routinely avoids doctrinal limitations on the reach of Rule 10b-5 and brings cases that disagree with established precedent. One reason for this shift is the SEC’s increasing emphasis on penalty collection. Another is that the SEC is advancing a more ambitious regulatory agenda. An entrepreneurial approach has increased the impact of SEC enforcement and addressed criticism that the agency is too passive. However, to maintain the legitimacy of its enforcement program, the SEC should take steps to increase the transparency of its enforcement decisions.