Georgia Law Professor Cade and attorney Mary Honeychurch (JD18) coauthor immigration essay

The U visa – a visa set aside for nonimmigrant victims of certain crimes who have endured mental or physical abuse and are willing to assist law enforcement – is the subject of a new essay co-authored by scholars here at the University of Georgia School of Law.

The essay, “Restoring the Statutory Safety-Valve for Immigrant Crime Victims: Premium Processing for Interim U Visa Benefits,” appears at 113 Northwestern University Law Review Online 120 (2019). It was written by Georgia Law Professor Jason A. Cade, whose teaching and scholarship focus on immigration law, and one of his former students, Mary Honeychurch (JD’18), who is now an immigration attorney at Seyfarth Shaw LLP in Atlanta.

Here’s the abstract:

“This Essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that United States Citizenship and Immigration Services (USCIS) has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the U visa remain underrealized and communities are left less safe. In an era of sustained focus on enforcement and increased instability within immigrant communities, the situation becomes ever more urgent. This Essay introduces and defends a simple administrative innovation that would dramatically improve the process: a premium processing route for interim approvals and employment authorization. Although our proposal cannot resolve all the underlying problems, it is pragmatic, easily implemented, and superior to the status quo.”

The full essay is available here.

Georgia Law’s Elizabeth Weeks on “Healthism,” her new co-authored book about health-status discrimination

Pleased today to welcome a contribution from Elizabeth Weeks, Associate Dean for Faculty Development and J. Alton Hosch Professor of Law here at the University of Georgia School of Law. Weeks concentrates her teaching and scholarship in fields of law related to health care. In the post below, she introduces her new co-authored book, which will be of great interest to all concerned about the human right to health. It will be the subject on Wednesday, February 27, of a Georgia Law book panel featuring Law Professors Jennifer Bennett Shinall of Vanderbilt, Stacey Tovino of Nevada-Las Vegas, Ani Satz of Emory, and Nicolas P. Terry of Indiana-Indianapolis.

I am delighted to announce the recent publication by Cambridge University Press of my book, Healthism: Health Status Discrimination & the Law, co-authored with Jessica L. Roberts, Alumnae College Professor in Law  and Director of the Health Law & Policy Institute at the University of Houston Law Center.

Healthism proposes a new protected category – the unhealthy – and examines instances of discrimination against the unhealthy in multiple contexts:

Our book considers these and a host of other examples. It concludes that some operate as normatively wrong – or “healthist” – laws, policies, or practices. Others, however, are not only permissible, but also may be desirable, inasmuch as they encourage or support healthier lifestyles.

This book’s most important contributions are:

  • To introduce the concept of healthism into the lexicon; and
  • To invite ongoing dialogue about the merits and demerits of treating individuals differently based on their health status.

The genesis of our healthism project was the Patient Protection and Affordable Care Act of 2010, or ACA, which largely prohibits health status discrimination in health insurance in the United States.  Specifically, the ACA prohibits insurers from denying coverage based on preexisting conditions or charging higher premiums based on individual risk factors.

In 2010, single-payer health system, or a national health system, or even “Medicare for All,” were (and likely remain) political nonstarters in the United States. President Barack Obama’s signature law, the ACA, instead effected a sort of mandatory mutual aid society, a compelled communitarian approach, to health care.  In order to ensure that coverage for the unhealthy remained affordable, the law required most Americans to obtain health insurance – whether through eligibility for a government program or employer-sponsored plan, or by purchasing on the individual and small-group market – with government subsidies for some.

As of January 1, 2019, however, a critical pillar of that legislative design has been removed:

According to the Tax Cuts and Jobs Act, or TCJA, a law enacted in November 2017 under President Donald J.  Trump, the tax penalty associated with the so-called individual mandate no longer applies.  Americans now again are free to “go bare,” without any health insurance, or to purchase short-term, catastrophic-only, or other high-deductible/low-premium, limited coverage.  Many plans on the market still operate with the antidiscrimination provisions and other protections required by the ACA; however, no one any longer is compelled to purchase them.

The effect may well be to make those plans less affordable for the unhealthy – those who most need comprehensive coverage.  TCJA is just one of several U.S. reforms that threaten to erode legal protections for the unhealthy and so to reintroduce legal and social acceptance of healthism.

Our book stops short of proposing a model law or draft constitutional provision to comprehensively address this problem. Instead, it offers readers a workable rubric to navigating the shifting landscape of permissible and impermissible health-status discrimination.

Georgia Law Professor Kent Barnett compares administrative law approaches at conference in Poland


Pleased today to welcome a contribution from Kent Barnett, J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law. Professor Barnett concentrates his teaching and scholarship in the areas of contracts law, consumer law, and administrative law—including comparative approaches. He contributes the post below on his recent collaboration with European counterparts on the panel above, at a conference in Poland.

In what may come as a surprise for many American administrative law scholars, the world extends beyond Washington, D.C.

These scholars rarely consider comparative approaches to administrative law or debates in other legal systems. Perhaps they can be forgiven because of the ever-increasing complexity of domestic administrative law. But as conservative and liberal political and judicial factions contest an increasing number of longstanding tenants of domestic administrative law, comparative inquires may prove more useful and timely than ever.

I confirmed this intuition recently, when I accepted an invitation to participate in a conference concerning “Judicial Deference in Competition Law,” sponsored by the Centre for Antitrust and Regulatory Studies at the University of Warsaw this month. Taking part in a panel that considered general aspects of deference law, I discussed my research into the theoretical and doctrinal foundations of how American courts defer to administrative agencies’ determinations. My co-panelists—Drs. Mira Scholten and Rob Widdershoven, both professors at the Netherlands’ University of Utrecht—discussed deference in European Union courts or theoretical models for understanding deference in most legal systems.

Most of the legal models (whether of the EU, national European courts, or U.S. courts) follow similar paths when approaching how and whether to defer to agencies. In many instances, the terminology differs or the boundaries for similar doctrines may vary slightly. But in the main, these disparate legal systems have largely reached consensus on certain matters: deference to factual findings for technical matters and deference to discretionary decisions.

But my interactions with scholars in Poland confirmed that the European model has some striking differences from the American system—differences that inform two current debates:

► One difference, as numerous panelists mentioned during the conference, is that European models distinguish between civil and “criminal” punishments. “Criminal” matters are significant agency actions, such as large fines, which require significantly more judicial oversight. American law, in contrast, does not meaningfully distinguish between insignificant and significant agency actions against regulated parties. Perhaps doing so, however, would assuage growing concerns over U.S. regulatory agencies’ ability to fine regulated parties or deprive them of necessary business licenses, especially when regulated firms demonstrate good faith attempts at regulatory compliance.

► A second difference is that European courts do not defer to agencies’ interpretations of law. American courts, on the other hand, defer under the well-known Chevron doctrine to agencies’ reasonable interpretations of ambiguous statutory provisions. The European experience suggests that whatever Chevron’s constitutional or statutory demerits, deference to agency legal interpretations is not inevitable. Instead, it is a chosen policy or jurisprudential choice whose benefits or demerits support or cut against it.

In short, the conference represents but the beginning of comparative conversations that U.S. administrative scholars can and should have to inform debates about domestic administrative law.

Briefings from eminent international law judges, plus meetings at Lebanon tribunal, conclude our 2018 Global Governance Summer School

From left, at the Peace Palace, Georgia Law’s Global Governance Summer School students Saif Ahmed, Mills Culver, Bryant Oliver, Maddie Neel, Frances Plunkett, Brooke Carrington, Hanna Karimipour, and Caroline Harvey

THE HAGUE – Briefings from two eminent international law judges anchored the conclusion of our 2018 Global Governance Summer School (prior posts).

This morning, students heard from Sir Christopher Greenwood, a Briton who serves as a member of the Iran-United States Claims Tribunal. Though a presentation accented by anecdotes, he explained the history of US-Iran relations that led to establishment of the tribunal in 1981, the work of the tribunal over the last several decades, and its pending cases.

The presentation by Judge Greenwood, who had served from 2009 until early this year on the International Court of Justice, followed presentations at the latter court yesterday afternoon.

Most notably, the Honorable Joan Donoghue of the United States, one of the ICJ’s 15 permanent judges, spoke yesterday with students, both about the melding of the common and civil law systems in the court’s procedures and about the challenges of judging in the international context.

Also at the ICJ, Julia Sherman, a Judicial Fellow who works with Judge Donoghue, provided a tour of the ICJ’s headquarters, the 105-year-old Peace Palace. Sherman led students through the life cycle of an ICJ case, and also gave overviews of some recently decided ICJ cases.

Our summer school had started yesterday at the Special Tribunal for Lebanon, where representatives of the various court organs spoke to students. They included: Kirsten Calhoun, a Legal Officer in Chambers, who gave an overview of the tribunal’s history and mandate, as well as an introduction to the applicable law; Peter Koelling, Chief of the Registry’s Court Management Services Section; TJ Adhihetty, Trial Counsel in the Office of the Prosecutor, who walked students through the prosecution’s case in Prosecutor v. Ayyash et al., focusing on call data records; and Marie-Pier Barbeau, Legal Officer in the Legal Advisory Section of the tribunal’s Defence Office, and Jason Antley, Associate Legal Officer representing the interests of defendant Salim Jamil Ayyash, who discussed the challenges of representing the named defendants in absentia.

The Global Governance Summer School having come to and end, some students began or continued Global Externships, while others traveled in Europe before returning to the United States.

Professor Bruner compares UK, US business practices in new “Research Handbook on Fiduciary Law”

Christopher M. Bruner, J. Alton Hosch Professor of Law here at the University of Georgia School of Law, has just published “Opting Out of Fiduciary Duties and Liabilities in U.S. and U.K. Business Entities.” It appears as a chapter in a 2018 Edward Elgar volume, entitled Research Handbook on Fiduciary Law, and edited by D. Gordon Smith, Dean and Glen L. Farr Professor of Law at Brigham Young University’s J. Reuben Clark Law School,  and Andrew S. Gold, Professor of Law at DePaul University College of Law.

Here’s the SSRN abstract for Bruner’s contribution:

This chapter explores the extent of contractual freedom to opt out of fiduciary duties and liabilities in U.S. and U.K. business entities, including the U.S. corporation, general partnership, limited partnership, limited liability partnership, and limited liability company, and the U.K. limited company, general partnership, limited partnership, and limited liability partnership.

Discernible commonalities emerge from this comparative analysis. Notably, corporate law readily permits reducing liability exposure for breaches of duty in each jurisdiction, yet provides only quite limited capacity to carve back at the substance of the duties themselves. Meanwhile, unincorporated entities in each jurisdiction offer substantially greater latitude to limit the duties themselves, in some cases resulting in purely contractual business relationships.

Yet substantial differences are also apparent. U.S. corporate law permits greater insulation from liability exposure, and U.S. unincorporated entities generally provide clearer and more extensive latitude to eliminate default duties of loyalty and care outright (particularly in Delaware). One cannot comprehensively declare that U.S. law universally deviates further from the “fiduciary” governance paradigm, however, because the U.K. limited liability partnership has gone further by providing an entity form in which no such general default duties apply at all.

The analysis raises some complex comparative questions, and the chapter closes with brief reflections on why such trends, commonalities, and divergences may have arisen.

Professor Cohen’s AJIL essay on “Multilateralism’s Life-Cycle” at SSRN

Harlan Grant Cohen, the Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of our Dean Rusk International Law Center at the University of Georgia School of Law, has posted a chapter entitled “Multilateralism’s Life-Cycle,” which will appear in a forthcoming issue of volume 112 of the American Journal of International Law.

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded at this SSRN link.

Here’s the abstract for this essay by Professor Cohen, an expert in global governance and member of the AJIL Board of Editors:

Does multilateralism have a life-cycle? Perhaps paradoxically, this essay suggests that current pressures on multilateralism and multilateral institutions, including threatened withdrawals by the United Kingdom from the European Union, the United States from the Paris climate change agreement, South Africa, Burundi, and Gambia from the International Criminal Court, and others, may be natural symptoms of those institutions’ relative success. Successful multilateralism and multilateral institutions, this essay argues, has four intertwined effects, which together, make continued multilateralism more difficult: (1) the wider dispersion of wealth or power among members, (2) the decreasing value for members of issue linkages, (3) changing assessment of multilateral institutions’ value in the face of increased effectiveness, and (4) members’ increased focus on relative or positional gains over absolute ones. Exploring how each of these manifests in the world today, this essay suggests that current stresses on multilateralism may best be understood as the natural growing pains of an increasingly mature set of institutions. The open question going forward is what form the next stage of development will take. Will strategies of multilateralism continue or will they be replaced by smaller clubs and more local approaches?

Hague briefings at ICC, Iran-U.S. Claims Tribunal and ICJ launch 2017 Global Governance Summer School

At the Iran-U.S. Claims Tribunal, front from left: Ana Morales Ramos, Legal Adviser; Hossein Piran, Senior Legal Adviser; Kathleen A. Doty, Interim Director, Dean Rusk International Law Center; David Caron, Tribunal Member; and Georgia Law Associate Dean Diane Marie Amann. Back row, students Nicholas Duffey, Lyddy O’Brien, Brian Griffin, Wade Herring, Jennifer Cotton, Evans Horsley, Casey Callaghan, Kristopher Kolb, Nils Okeson, James Cox, and Ezra Thompson.

HAGUE – Briefings at key international law institutions here have highlighted the initial leg of the Global Governance Summer School led by the University of Georgia School of Law Dean Rusk International Law Center.

Our students’ journey began with a visit yesterday to the International Criminal Court Permanent Premises (left), a tile-and-ivy structure, located in dunelands not far from the North Sea, that opened just 18 months ago. Accompanying them were Associate Dean Diane Marie Amann and our Center’s Interim Director, Kathleen A. Doty, both of whom will lecture at the summer school next week.

Outlining the work of the Office of the Prosecutor were the Prosecutor’s Senior Legal Adviser, Shamila Batohi, and Legal Assistant, Annie O’Reilly (right), with whom Associate Dean Amann works in her capacity as the Prosecutor’s Special Adviser on Children in and affected by Armed Conflict. Topics included case selection and specific cases, complementarity and state cooperation, and the role of the prosecution in relation to other organs of the court.

Then Leiden Law Professor Dov Jacobs, a Legal Assistant in Defense at the ICC and member of the defense team for Laurent Gbagbo, the former Ivoirian President now on trial before the court. Shifting from the theoretical to the practical and back again, he spoke about the nature and challenges of international criminal justice, particularly as it relates to the defense function before contemporary bodies like the ICC.

The journey continued today with a morning briefing at the Iran-U.S. Claims Tribunal, an international organization established by treaty 36 years ago as a means to settle disputes arising out of the 1979 takeover of the U.S. Embassy in Tehran. It comprises 3 Americans, 3 Iranians, and three members from other countries. Offering a fascinating dialogue on the history and operations of the tribunal were Dr. David Caron, a U.S. member of the tribunaland an international law professor at Kings College London, and Dr. Hossein Piran, Senior Legal Adviser at the tribunal.

(It was a treat to learn that one of Dr. Piran’s professors was the late Gabriel N. Wilner, who founded our European summer study abroad during his long tenure on the Georgia Law faculty. Holding the professorship named after Wilner is Georgia Law Professor Harlan Cohen, who will lecture in this summer school next week, along with Leuven Law Professor Jan Wouters and others.)

The afternoon brought us to the Hague’s Vredepalais (left), or Peace Palace, built in the early 1900s to house international institutions that would foster pacific, rather than warlike, settlements of disputes.

Leading discussion on one of those institutions, the International Court of Justice set up under the 1945 Charter of the United Nations, was Dr. Xavier-Baptiste Ruedin (right), Legal Adviser for Judge Joan E. Donoghue. Topics ranged from provisional measures, like those recently issued in a case involving India and Pakistan, to jurisdiction via advisory opinion (including one soon to arrive at the court, following yesterday’s U.N. General Assembly vote) or contentious case.

A question common to all 3 visits was the role of such institutions – and international law more generally – in the governance of global affairs. We’ll continue to seek answers next week, when our Global Governance Summer School moves to Belgium for classroom seminars and an experts conference with our partner institution, KU Leuven’s Leuven Centre for Global Governance Studies.